Telehealth laws are changing by the minute. Let us keep up for you.
Whether you call it telehealth, telemedicine, virtual visits, or remote care, you know that it’s become essential to the survival of many independent practices. Patients now expect an online option for many healthcare specialties and seek out practitioners who meet that expectation.
The COVID-19 pandemic has also forced many practices to offer virtual visits that ensure continuity of care and adequate monitoring of patients with chronic conditions. Immediate care centers and primary care offices have even heeded the call. Most large medical systems now encourage patients to schedule medically-appropriate urgent online consultations. While a practice might have reacted quickly last spring in implementing a COVID-friendly way of staying in touch with patients, the virtual realm of care is no longer new.
New practices are integrating virtual visits into their business plans from day one. Meanwhile, many established medical practices have pivoted to telehealth for safety, convenience, or both. And now that we have a better sense of how COVID has impacted care, it’s time for established practices to backtrack and consider whether their current approach is accompanied by the appropriate safeguards, training, and policies.
Helping answer the telehealth questions you might not know to ask.
But what are the legal issues? And is it that different from in-person care?
- Do your practice act and ethical obligations allow you to offer your specific services via telehealth?
- Do your insurance contracts include insurance parity for your services? That is, if you offer a particular service via telemedicine, will all of your contracted insurers cover it at the same rate?
- Are you billing and coding your telehealth visits correctly?
- Do your records support the medical appropriateness of your telemedicine encounters? For example, if a patient alleged that you fell beneath your standard of care by seeing them through a virtual, rather than in-person, visit, would your documentation support your decision?
- How can and should mid-levels be supervised for care offered virtually?
- Is your technology compliant with HIPAA and with your state’s medical privacy laws? Has your team been trained on telemedicine-specific privacy concerns?
- Are you careful to direct emergent patients towards immediate ER care?
- Do you understand when your standard of care requires you to see a patient in-person? How can you navigate that if you’re not currently seeing in-person patients?
Remember that compliance goes beyond merely observing what your peers are doing. In fact, some of your competitors may be practicing telemedicine outside of the confines of the law.
Jackson LLP’s experienced telemedicine attorneys look closely at your specialty and practice, evaluating telehealth’s risks and liabilities for your situation. We have been helping practices since well before COVID address the rapidly evolving federal and state requirements, including:
- Standards of care
- Lab testing
Each practice brings a unique set of circumstances, and each US state places its own set of restrictions on clinicians who treat patients online. However, here are some of the more common services we provide for our telehealth/telemedicine clients.
General Telehealth / Telemedicine Guidance
We answer your burning questions by relying upon our experience and familiarity with healthcare law, paired with our diligent monitoring of regulatory changes during COVID. Has HIPAA been “suspended” for those using telemedicine during the COVID emergency? (Short answer: no.) Does it matter what platform you use to connect with patients? Can you establish a new patient relationship over telemedicine, or can you only see existing patients that way? What are the guidelines for writing prescriptions for telehealth patients? Can you see patients across state lines or even in another country?
Often, the first and most fundamental step for our clients is to learn how their goals for practicing telemedicine (or tele-PT, teletherapy, and tele-veterinary care, to name a few) align with the law. Relevant laws include federal law, state medical privacy and practice acts, insurance contracts, and their specialties’ ethical requirements. Our telehealth lawyers can help you structure your operations and develop policies that support compliance—all while improving patient care.
If you’ve already launched a telehealth presence but initially skipped this step, we can review your current practice and guide you through the modifications necessary to comply with federal and state requirements. We can also perform a chart audit, where we’ll review a randomized, representative sample of your patient charts from the past year, to catch any mistakes before they become hard-to-break habits.
Telehealth Informed Consent
When obtaining informed consent from a telehealth patient, you must be clear about the distinctions between a virtual visit and an in-office encounter. You must also educate your patient about the limitations of a telehealth visit when applicable.
A provider who fails to obtain adequate informed consent can face professional liability and legal consequences. Informed consent refers to the requirement that physicians and other providers who propose a medical treatment or procedure first discuss the potential risks, benefits, and alternatives of that treatment with the patient. The patient must have an opportunity to ask questions, and this conversation should be thoroughly documented.
Telehealth Registration Packets / Intake Forms
The format of the questions in your registration packet should mirror the format and organization of the conversations you have with your patients. These should be open-ended inquiries that demonstrate your concern for the patient’s priorities. They should also include non-medicalized discussions of their current and desired level of health or function. In most cases, the forms you use for in-person office visits will need to be modified or rewritten for telemedicine.
Charity Care Programs
Healthcare providers frequently experience tension between the financial needs of their practice and their patients’ medical needs. To streamline a practice’s treatment of these issues, Jackson LLP’s attorneys recommend maintaining a charity care program. Your program will set forth the standards for evaluating patients’ needs, the frequency with which you revisit their responsibilities to make payments, and your recourse if they stop paying as agreed.
Speak to a telemedicine attorney
If you’re based in any of the states where we practice—or you wish to extend your current practice to those states— find out if we’re the right healthcare law firm for your needs by scheduling a free consultation.