Ready to Practice Telehealth? Keep These Legal Issues in Mind

Is your practice interested in launching a virtual presence to weather the COVID-19 pandemic? You’re not alone. We address some of the important legal issues surrounding telehealth and telemedicine.

(Updated March 16, 2020)

As the spread of COVID-19 escalates, more and more patients are engaging in self-quarantine and reducing in-person interactions. With fewer patients willing to leave home and the need to protect your own staff, how can your practice survive? If you’re like many practice owners, you’re considering telehealth for the first time.

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The Increase in Telehealth and Maintaining Your Ethical Standards

Thanks to rapid technological advances, tech-savvy patients have sought care online for years. Now the current pandemic is bringing more attention to telehealth, pushing it into the mainstream and creating new demand.

While many providers find telehealth attractive in theory, there’s still concern about the ability to provide adequate care for patients without in-person interaction. It can be challenging to maintain an ethical telehealth practice in the face of new obstacles.

For example, how do you treat a patient via telehealth when it is necessary for you to put your hands on the patient (i.e., be physically present)? If and when this occurs, you must inform the patient that telehealth treatment is not sufficient and that the patient must come into the office for an in-person meeting.

Crucially, you must maintain your standard of care during patient encounters. This means that your virtual visits must not result in sub-standard, less comprehensive patient care.  By engaging with patients via telemedicine, you are communicating that it is an adequate alternative to in-patient visits; if this is not the case, you must refer that patient for in-person care, lab testing, or immediate transfer to an emergency room. 

Negative patient outcomes that result from less-than-standard telemedicine-based care can mean medical malpractice claims or lawsuits later, so it’s absolutely necessary for you to be honest — with your patients and with yourself — about the limitations of telemedicine.

Getting Paid for Telehealth Care

While telehealth is convenient for patients, there can be hurdles for providers who are new to the medium. Providing telehealth is an additional cost that many practices did not plan for in 2020. Both the public and private spheres have addressed this concern arising in the growing telehealth field.

The Federal Response

Even before the response to the spread of the novel coronavirus, Medicare allowed doctors to bill for virtual patient check-ins occurring by phone or video. These brief, virtual check-in services were for “patients with an established relationship with a physician or certain practitioners where the communication is not related to a medical visit within the previous 7 days and does not lead to a medical visit within the next 24 hours (or soonest appointment available),” according to a March 5  CMS memo intended to educate practitioners about Medicare coverage during the COVID-19 pandemic.   

On March 6, 2020, President Trump signed the Coronavirus Preparedness and Response Supplemental Appropriation Act (HB 6074)  into law as a way to address the growing healthcare concerns surrounding COVID-19. Among other things, this law apportions around $8 billion to tackle the coronavirus, and the Act also granted the Department of Health and Human Services (HHS) the power to waive some of the limitations surrounding telehealth for Medicare beneficiaries.

Depending upon how HHS acts, this could expand the types of telemedicine services for which Medicare will reimburse, including changes to geographic restrictions or delivery-site requirements. We could also see an expansion of the types of providers who can provide telehealth-based services to Medicare beneficiaries and of the technologies through which the care can be rendered.

The Private Insurance Expansion vs. State Practice Acts

Besides a possible expansion in the public sphere, BlueCross BlueShield of Illinois (BCBS) has expanded its telehealth programs in response to COVID-19. The program now includes telephone evaluations as well as online digital evaluations.  BCBS has also added 24 new telehealth procedure codes for providers that bill medically necessary health care services. This includes codes for behavioral health therapy. Meanwhile, Humana announced that it will waive telehealth costs for all urgent care for the next 90 days as a way to encourage isolation and reduce the spread of disease.

Many states’ existing laws require “insurance parity” for telehealth, which basically means that if a service is covered in an in-person setting, it must also be covered in a telehealth setting.

However, insurance parity laws and private insurers’ contracts don’t always align with state practice acts. For example, in Illinois, even though insurance may pay for a non-video phone “visit,”, the use of telephone-only telehealth is a grey area under many of the state’s practice acts. (Stay tuned for updates on the situation, as physicians are pressing the state for more clarity).

Telehealth basics

For some practitioners, this is your first foray into telehealth. As you begin treating patients in this format, remember a few key points to help insulate your practice from liability. 

HIPAA

Before the COVID-19  emergency, HHS required providers to use HIPAA-compliant technologies to guard protected health information.  Providers were also required to enter into business associate agreements (BAAs) with the technology vendors and use secure internet connections.

However, on March 17, HHS released a notification of enforcement discretion for the duration of the national emergency, giving covered health care providers more latitude to communicate online with patients, especially those for whom COVID-19 poses the highest risk.

The notice specifies that providers, exercising their professional judgment, may offer care through non-public facing audio and video platforms that do not meet the previously established standards. Examples of newly allowed platforms include: 

• Apple FaceTime
• Facebook Messenger
• Google Hangouts video
• Skype

Under the notice, however, public-facing platforms such as Facebook Live, Twitch, and TikTok remain prohibited for conducting telemedicine.

On a day when several clients have casually mentioned to us that “since HIPAA is suspended, I’m doing _____,” we feel it’s imperative to reiterate that HIPAA’s privacy and security rules do still apply to these interactions, and security concerns are typically more acute when using technology for patient communications. It’s crucial that you review your comprehensive HIPAA policies and procedures manual to ensure your conduct complies with those policies.  We further recommend that you have insurance in place to protect against cybersecurity events.

Insurance Contracts

Before beginning care, you should also ensure that your insurance contracts allow you to use telehealth. If they don’t, you risk losing out on reimbursement for these patient encounters. Clarify the appropriate billing codes, ask for help in reviewing the contracts, and stay up-to-date about how the insurers are responding to the COVID-19 crisis. 

Also, be mindful of whether the insurance contracts impose heightened restrictions upon the types of care you can offer and types of technology upon which you can rely for these visits. This can vary by practice, profession, and geographic area — so just because “everybody else is doing it,” don’t assume you can follow suit. 

Informed Consent

Lastly, be sure to obtain telehealth-specific informed consent. You must implement telehealth informed consent forms that reflect the specifics of your practice, treatments, technologies, and state laws. 

Your general treatment informed consent forms do not suffice for this, and generic free downloadable forms often lack the nuance required to obtain true informed consent (not to mention that they fail to reflect the specifics of your practice and legal obligations). Your patients must fully understand all that telehealth entails and be comfortable with its use. 

Adopting Telehealth Now

The spread of COVID-19 is pushing providers to adopt telehealth as quickly as possible, despite the considerations that we mentioned above. If you need guidance for practicing telemedicine in your state and specialty, reach out to us. You can learn about us through a free consultation, where we’ll discuss how we can help you get up and running while staying compliant.

The COVID-19 pandemic is a dynamic and evolving public health emergency. The laws and situation are fluid, and this article may not reflect the most current situation.

Our website does not constitute legal advice, and it does not create an attorney-client relationship between us.