Telehealth and Telemedicine Law

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.

New practices are integrating virtual visits into their business plans from day one. Meanwhile, many established medical practices quickly 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 they have adopted appropriate safeguards, training, and policies. 

Our Services for Telehealth Practices:

Jackson LLP’s experienced telemedicine attorneys look closely at your specialty and practice, evaluating telehealth’s risks and liabilities for your situation. Long before COVID-19 brought remote care into the mainstream, our law firm has been helping practices address the rapidly evolving federal and state requirements, including:

We help answer the telehealth questions you might not know to ask.

So 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 visit instead of in person, 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 toward 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. 

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.

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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.

Learn more ▶

Charity Care Programs

Often, healthcare providers 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.

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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.

See our blog for more information about telehealth law:

HIPAA Enforcement Changes amid COVID-19: Fact versus Fiction

HIPAA Enforcement Changes Amid COVID-19: Fact Versus Fiction

When the US government announced a loosening of some HIPAA requirements during the national emergency, independent healthcare practices rejoiced. But many practitioners also went overboard, misunderstanding how the notification applies—and more importantly, how it doesn’t.
Read More

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