Starting a New Patient Relationship Over Telemedicine

As you delve into telemedicine to deliver care, you may wonder about the rules for establishing a new patient-physician relationship. We discuss the current requirements in Illinois and New York, and the crucial role of clinical judgment.

Telemedicine laws are generally dictated by the states, thus creating incredible variability as to what conduct is permitted across the country. Some states require providers to conduct an initial in-person visit to establish a provider-patient relationship before they can “see” that patient via telehealth platforms. Other states are more lenient and allow patient-provider relationships to be initiated over telehealth.

New Patient Relationships: Telemedicine in Illinois and New York

Jackson LLP’s offices in the Chicago and New York metro areas have been inundated with questions about establishing new patient relationships online as doctors see their communities and practices impacted by the novel coronavirus.  These two metro areas encompass nearly 10% of the nation’s population, many of whom are seeking to obtain healthcare via telemedicine for the first time. (See “Ready to Practice Telehealth? Keep These Legal Issues in Mind”  for updates on how COVID-19 impacts telemedicine.)

Illinois does not require an in-person visit to establish a patient-provider relationship. There is a void in state law on this topic, meaning the law does not contain an express requirement that relationships be initiated with an in-person visit. Instead, the decision is left to the independent judgment of each provider as to whether the patient relationship can be effectively begun via telemedicine. Individual practice acts and scopes of practice do vary and should be consulted.

New York also allows for the physician-patient relationship to be established via telehealth. A patient-provider relationship is presumed to exist when a physician offers medical advice— whether that advice is given remotely, gratuitously, or in any other fashion. This should both remind providers to be cautious about “accidentally” initiating relationships where they do not intend to do so, but it also suggests a permissiveness in the manner in which relationships commence, including via telemedicine. 

The role of the standard of care in initiating new patient encounters

It’s important to remember that, broadly, not all patient encounters or medical specialties are well-suited to telehealth. A few examples below illustrate the nuances of telemedicine and the importance of doctors using their best clinical judgment on a patient-by-patient basis.

Reproductive Endocrinology

Take a reproductive endocrinologist, for example, who may be able to effectively conduct non-clinical discussion-based appointments via video calls. This may include the patient’s initial visit with the doctor, thus initiating an establishing a patient-provider relationship over telehealth. If the parties decide to explore IVF treatments further, the doctor may refer the patient for a psychological consultation, which may also occur via telehealth, and for a short-term course of contraceptive pills to stabilize the patient’s cycle. 

However, that same physician cannot effectively monitor a patient’s ovarian response to fertility medications, perform ultrasounds, or draw blood. It is thus left to the doctor’s professional judgment whether the patient’s fertility treatments should be initiated or discontinued while COVID-19 remains a threat—with discontinuation being recommended by the American Society of Reproductive Medicine—or whether the patient’s unique circumstances warrant continued in-person visits to see the treatments to completion (i.e., fertility treatments are being done immediately before the patient begins chemotherapy or undergoes a total hysterectomy).

Physical Therapy

Another common example occurs in the context of physical therapy. A patient experiencing lower back pain contacts a physical therapist for help, but the patient has not yet seen a physician about the condition, so there is no imaging available. The physical therapist can conduct a limited evaluation via telemedicine, screening for possible causes of injury or evaluating which movements exacerbate or alleviate the pain. However, because the standard of care likely requires that the physical therapist put hands on the patient, this telehealth consultation is likely an insufficient foundation for an ongoing relationship. 

Indeed, at the point that the physical therapist identifies the patient as being in need of in-person evaluation, the provider should make such a referral. The patient’s desire to see practitioners only via telemedicine does not trump the provider’s standard of care to ensure that their care is comprehensive and skilled, and it does not trump the very real need of patients to frequently be seen for in-person evaluation to rule out serious conditions.  

Additional Specialties and Telemedicine

Some healthcare professions are particularly well-suited to conduct initial visits via telemedicine:

• Fertility specialists, where even the traditional in-office initial consultation is conversation-based and does not include a physical patient exam
• Registered dietitians, whose initial consultations are often focused upon gathering information about a patient’s lifestyle and nutritional habits
• Behavioral health providers, including therapists and psychiatrists

Keep in mind that these initial visits can result in an order for lab work or a referral to see an in-person provider. If that’s the outcome of the visit, that doesn’t mean the visit itself shouldn’t have occurred via telehealth. If anything, it indicates the provider’s recognition of telehealth’s frequent need for in-person medical intervention or supplementation. 

In limited situations, even surgeons can conduct effective, high-quality visits via telemedicine — especially when the purpose of the visit is to provide the patient with a second opinion about a proposed course of action, to review the findings of imaging studies, or to follow up on post-surgical mobility and pain management. As the federal government urges doctors to stop performing non-urgent surgeries, and as ventilator-equipped ambulatory surgical centers (ASCs) await news as to whether their facilities will be used to care for COVID-19 patients, many orthopedic surgeons and similarly-situated specialists are asking whether telemedicine is a feasible alternative for their practices.

Specialties Less Suited to Establishing Relationships Via Telemedicine

Other healthcare providers are less suited to offering telemedicine visits or to beginning patient relationships in this way:

• Psychiatrists who treat those with severe mental illnesses where it may be important to observe the patient’s behavior in-person.
• Dermatologists performing routine skin cancer screenings and who frequently employ magnifying glasses and special lighting to ensure the comprehensiveness of exams;
• Dental and oral health professionals who rely heavily upon hands-on evaluations;
• Doctors treating pain, neuropathic, or other complex conditions, whose evaluations rely heavily on hands-on examination and often require the prescription of controlled substances.

Keep in mind that your specialty’s incongruence with an initial telemedicine-based visit doesn’t alone prohibit you from conducting that visit. Instead, it imposes limitations upon the scope of the visit, your advice, and the resulting treatment.  You may “see” a scheduled new patient via videoconference who you deem to be ill-suited to that type of relationship, and who you thus refer for an in-person follow-up visit with the patient’s PCP, refer for immediate care in the emergency room, refer for specialty care, or refer for labs or imaging to gather more information. The goal here is to keep the limitations of telemedicine at the forefront of your mind and to remember the benefits—often quite considerable—of putting your hands on a patient.

PS: If you do transition your practice to a more telehealth-based care model in light of COVID-19, remember that telemedicine-specific informed consent is necessary.

Piecing Together the Telemedicine Puzzle

As more physicians and patients find the prospect of telemedicine appealing—and even necessary—federal and state governments are rolling out new guidelines at an unprecedented rate. At Jackson LLP, we’re monitoring the changes closely and helping our clients sort the rumors and misunderstandings from the rapidly-evolving realities. 

Reach out to us if you need to establish a compliant telemedicine presence. We want to help you continue to serve your patients— without risking your license or practice in the future.

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.

This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader and should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.