How to avoid the legal risks of telemedicine

June 28, 2019
Mary K. Pratt
Volume 96, Issue 13

As physicians add telehealth services to their practices, they need to consider legal and compliance issues around providing such care, from telemedicine-specific regulations to state licensure requirements and even malpractice-related questions.

Judd Hollander, MD, holds a medical license in Pennsylvania, where he practices, but to ensure that he could legally treat his patients virtually, even when they’re traveling out of state, he sought out medical licenses in an additional 18 states.

Hollander obtained those credentials after surveying 3,500 of his patients and asking about their travel showed that obtaining licenses in those 18 states, along with Pennsylvania, would allow him to see his patients nearly any time they needed him.

Hollander, who in addition to practicing is a senior vice president of Healthcare Delivery Innovation at Jefferson Health, a regional healthcare system based in Philadelphia, says this step allows him treat his patients without worrying about whether he is legally out of bounds.

Hollander says that it takes time and effort to manage the requirements associated with all those licenses. “It’s a half-time job keeping up with them,” he jokes, but he says physicians need to take such steps if they want to offer telemedicine services and be compliant with administrative rules and legal regulations.

Patients are increasingly seeking out virtual medical care, while more physicians are working toward providing increased telemedicine services.

However, as physicians add such services to their practices, experts say they need to consider legal and compliance issues around providing such care, from telemedicine-specific regulations to state licensure requirements and even malpractice-related questions.

“You do have to be careful. You can be successful if you’re meticulous, use good resources, have risk managers looking at policies and procedures, and have good technology selection, appropriate documentation and training around telemedicine,” says Neal Sikka, MD, chief of the innovative practice and telemedicine section at the George Washington University Medical Faculty Associates.

Multiple state licenses might be required

Technology now enables physicians to deliver a range of medical services virtually. Experts group these services into two categories: telemedicine, which is when the physician delivers care via telecommunications to a patient located at another site, and telehealth, which includes technology-enabled health services such as remote patient monitoring.

A leading consideration when implementing telemedicine is state licensure, experts say. Telemedicine adds a complication to licensure needs, because the technology enables physicians to see patients who are located in a state where the doctor is not
licensed to practice.

As such, physicians and other clinicians will likely need a license to practice in multiple states if they want to treat their patients virtually.
Experts advise physicians to examine their patient panel to determine if they have patients living out of state-for example, in a neighboring state if their practice is near a state line. Physicians may want to determine if they have a significant number of patients who re-locate for part of the year-such as retirees who head to warmer climates during the winter-or if a large percentage of their patients travel extensively.
Thus, a physician seeing a patient via video link needs to know where that patient is located at the time of the visit-known as the “originating site”-and understand that state’s  licensure requirements.

Some states are making it easier for physicians to practice in other states. The Interstate Medical Licensure Compact,  which encompasses 28 states and the territory of Guam and their 38 medical and osteopathic boards, offers an “expedited pathway to licensure for qualified physicians” seeking to practice in multiple states.

It also offers reciprocity, with the members recognizing each other’s licensing requirements so physicians don’t have to review and meet each state’s requirements to obtain a license, says Steven E. Waldren, MD, MS, vice president and chief medical informatics officer for the American Academy of Family Physicians.

Waldren notes that although physicians  still need to apply and pay license fees for each member state where they want to practice, the IMLC offers a more efficient way for physicians to obtain additional state licenses.

However, physicians seeking licenses in states that aren’t part of the compact will have to meet the requirements of each of those, Sikka says.

Rules vary by state

Physicians also need to understand the differences in state regulations governing telemedicine, experts say.

Some require physicians to see patients in person before offering any type of telemedicine service, while some have additional regulations that could apply to physicians billing patients located in those states. Some states have restrictions on asynchronous visits-interactions where the clinician and patient do not interact in real time-while others allow both synchronous and asynchronous visits as well as a  broader range of telemedicine services.

States vary in their regulations in other ways, says Rachel Dixon, a consultant and telemedicine expert with the Medical Group Management Association (MGMA). For example, some states allow physicians to prescribe certain controlled substances via telemedicine visits under certain circumstances. Such rules, she says, require physicians to understand such regulatory differences if any of their patients are out of state.

Furthermore, she says, states generally require physicians to obtain consent from patients before treating them, but some states have specific requirements around  consent that others do not.

California, for instance, requires the originating site provider to obtain and document patient consent, according to the Center for Connected Health Policy, while Kentucky says the treating physician who delivers or facilitates the telemedicine services is responsible for obtaining consent.

Jitendra Barmecha, MD, MPH, FACP,  who chairs the American College of Physicians’ newly formed Digital Health Advisory Group, says physicians should seek to ensure compliance with the varying state rules and regulations by building them into their telemedicine workflows.
For example, he says, just as most practices have front-office workers automatically obtain consent as part of the check-in process, the telemedicine application can include the appropriate consent documents based on the state rules where the patient is located at the time of the visit.

Medicare rules add another layer of complexity for physicians expanding into telemedicine, says Mollie Gelburd, JD, associate director of government affairs at MGMA.

For example, Gelburd explains, both the originating site and the physician providing the service are expected to submit documentation of the visit. Failure to meet that extra requirement would mean noncompliance with the federal rules.

Security, privacy risks

Telemedicine must also meet all HIPAA requirements. “The rules are no different for telemedicine than for [in-person visits],” says Ronald Weinstein, MD, founding director of the Arizona Telemedicine Program.

This means physicians need to ensure they’re in a location where no one can overhear the virtual visits, which would violate HIPAA’s privacy and confidentiality requirements. Additionally, physicians must use technology that’s compliant with HIPAA rules. The technology should have fully encrypted data transmission and provide secure connections. Experts stress that consumer videoconferencing platforms, such as Apple’s FaceTime application, do not offer those features.

Physicians that opt to work with another business or a technology provider to offer telemedicine services to patients must ensure that those partners are compliant with HIPAA regulations, too, Weinstein says.

“You should have contractual assurances that third parties will follow all the rules around HIPAA,” he adds.

Malpractice concerns?

Experts say physicians offering virtual services don’t face new malpractice rules or risks.

“Telemedicine isn’t really high risk, but you do want to make sure you’re practicing under the board of medicine for the state where the patient is located, and practicing under the terms of your licensure and the standards of care for the conditions and for your practice focus,” Sikka says.

Physicians who comply with licensing rules, who document appropriately and who follow the same standards of care they would for in-person treatments don’t create additional malpractice risks just because they’re offering their services virtually.

Still, there are risks if physicians don’t diligently adhere to the rules. For example, Waldren says, physicians could face a loss of malpractice insurance coverage if they treat a patient located in a state where they aren’t licensed to practice-even if that error was inadvertent.

As a result of the potential for such situations, Waldren advises physicians to consult with their attorney as well as with their malpractice insurance company before starting to offer telemedicine services.

Telemedicine training a must

Technology can help physicians adhere to the various regulations and laws that govern telemedicine services.

Some telemedicine applications, for example, allow physicians to incorporate into their telemedicine workflows the appropriate consent forms and checks on patient locations thereby helping them follow the rules applicable to their practice.

Additionally, experts advise physicians to seek out training in delivering telemedicine services to ensure that they’re not only following the applicable rules, but also so they’re delivering the best possible care in this new setting. Institutions that offer training in telemedicine services for physicians include the American Telemedicine Association, the American Medical Association, the Arizona Telemedicine Program and Thomas Jefferson University.

Experts say physicians shouldn’t let complicated regulations over licensure, rules and regulations stymie their adoption of telemedicine, because patients will increasingly seek out virtual visits and other technology-enabled care.

At the very least, Hollander says, physicians should offer telemedicine service to their existing in-state patients if they want to remain relevant in healthcare. “You have to figure out how to do it.”

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