Regulation of Medicine

article

Rules, Regulations and Best Practices for Telemedicine

By: Marshaleen King, MD
Executive Summary

Telemedicine is an effective way for practices to continue treating patients while reducing the risk of potential transmissions. However, each state has established rules regulating the practice of telemedicine that should be thoroughly reviewed before performing such services. Physicians should also take note of the potential cybersecurity and legal risks associated with telemedicine during implementation.

Recommended Actions 
  • Each year, review your state’s regulations regarding telemedicine and reimbursement policies for telemedicine services.
  • Establish clear policies and protocols in your practice regarding the administration of telemedicine services.
  • Train all staff and clinicians on your practice’s rules and regulations, policies and procedures, and use of the chosen telemedicine platform.


Telemedicine allows clinicians to provide safe, quality care to more patients while limiting potential disease transmission and decreasing the burden on the healthcare system. Since telemedicine allows greater conveniences for patients, such as the ability to see a healthcare provider with less time spent traveling, patients can take greater control of their health. Telemedicine is now reimbursed by all payers, with rates depending on your specific contract. To confirm coverage and reimbursement, we recommend contacting the payer directly.


Choosing a HIPAA-Compliant Telemedicine Vendor


As more providers turn to telemedicine, it’s pertinent that organizations understand the level of HIPAA compliance required from the organization as a “covered entity” and the vendor as a “business associate.” Seek out a HIPAA-compliant platform that is easy for you and the patient to utilize and that interfaces with your EMR/documentation system. For a more thorough discussion regarding potential risks to consider and appropriate steps to take when choosing a telemedicine vendor, review Choosing a HIPAA-Compliant Telehealth Service.  


Telemedicine Best Practices


Provider-Patient Relationship


It may be difficult to establish the exact point when a physician-patient relationship begins with telemedicine. The Federation of State Medical Boards (FSMB) states that the physician-patient relationship is “clearly established” once the physician agrees to diagnose and treat the patient and the patient agrees to be treated, whether or not an in-person encounter has occurred. When practicing telemedicine, the FSMB recommends that a physician:

  1. Verify the location and identity of the patient to the extent possible;
  2. Provide and validate your own credentials to the patient, i.e. medical license or other clinical qualifications; and
  3. Disclose communication and treatment methods to patients and obtain consent where appropriate.


Ensure that you know your state’s applicable telemedicine laws. Some states may require a pre-existing relationship or an in-person physical exam in addition to an exam conducted via telemedicine.


Evaluation and Treatment


The standard of care in telemedicine is the same as that of traditional medicine. Ensure that your evaluation, consultation and prescribed treatment are all thoroughly documented in the patient’s medical record. If for any reason you believe the evaluation, diagnosis or treatment will be too challenging for telemedicine, you should request an in-person appointment before providing medical advice.


Informed Consent


Healthcare providers must obtain and document the patient’s informed consent for the telemedicine services. Informed consent is more than just signing a form — you must explain the risks and benefits of receiving telehealth services along with any information reasonably necessary to obtain effective consent. 
You must also follow the specific consent requirements of your payer — whether that’s obtaining written or verbal consent. If your payer allows verbal consent, MagMutual recommends that you record and document the patient’s verbal consent as part of the patient’s telehealth visit.


Continuity of Care


Follow-up care should be readily available to the patient either from the physician conducting telemedicine or a provider designated by the physician. If the patient-physician encounters are done exclusively using telemedicine, then all documentation must be accessible to the patient. Patients may also request that the information be provided to their other healthcare providers.


Referrals for Emergency Services


Physicians practicing telemedicine should establish an emergency plan that can be implemented when the information obtained via telemedicine indicates that the patient requires referral to an acute care facility. The physician must provide the patient with this emergency plan, and the plan should include a formal written protocol that is appropriate to the services being rendered via telemedicine.


Medical Records


The medical records for telemedicine should be consistent with standards required for documentation in traditional medicine. Medical records for telemedicine should include copies of all patient-related electronic communications, laboratory tests and results, evaluations and consultations, prescriptions, records of past care and any instructions produced in connection with telemedicine. In states where written informed consent is required for telemedicine, the FSMB recommends that a copy of the informed consent be placed in the patient’s chart.


Prescribing


When prescribing via telemedicine, extra precautions should be taken to ensure patient safety in the absence of a traditional physical examination. Such measures should guarantee patient safety through informed, accurate and error-prevention practices.
Become familiar with your state’s telemedicine rules and review the DEA’s updated guidance regarding prescriptions and whether controlled substances can be prescribed via telemedicine. Healthcare providers who engage in telemedicine should also have knowledge of the availability of medications in the patient’s geographic location and the other providers caring for the patient. Caution should be exercised in prescribing medications that require close monitoring or that could lead to acute changes in a patient’s condition, particularly if the patient is not in proximity to a health facility or healthcare provider.  


Practicing Telemedicine Across State Lines


Generally, telemedicine providers must be licensed in every state in which they practice medicine. However, in response to the current COVID-19 pandemic, certain states have relaxed this requirement and are allowing physicians to practice across state lines. However, some temporary waivers are now inactive, such as in Florida. 
The FSMB maintains an updated list of states that have relaxed or waived certain licensure requirements here. MagMutual PolicyOwners should contact their agents or call 1-800-282-4882 to notify MagMutual of any additional states your practice is now entering for telehealth services. Some states have patient compensation funds in place as part of their payment system for damages relating to malpractice. We can help you determine if a fund applies or if the practice in a particular state is not covered under the fund of your primary practice state.


Professional Liability Coverage


MagMutual medical malpractice insurance provides coverage for incidents arising out of telehealth services. Typically, coverage only extends within the United States or its territories. Providers must be licensed in the state where the patient resides and adhere to all applicable state laws. MagMutual PolicyOwners should contact their agents or call 800-282-4882 for any additional questions, including coverage questions.
NPs and PAs
 
Before NPs or PAs practice telemedicine, a physician may be required to document to their state medical board that telemedicine is within his or her scope of practice and that the NP or PA has demonstrated competence in the provision of telemedicine.


Lessons Learned
  • Ensure that you have properly documented the patient’s consent to telemedicine services.
  • Ensure that your practice is using a HIPAA-compliant platform to conduct the telemedicine services.
  •  Ensure that your telemedicine system is adequately protected against cyberattacks and your practice has a protocol in place for responding to such an attack. 

Potential Damages


Since telemedicine incidents can result in a provider facing both regulatory fines and medical malpractice issues, there is a greater potential for a higher payout. However, the frequency of such claims is relatively low because this is a relatively new technology. To date, MagMutual policyholders have not made a claim for any loss relating to telemedicine.


Quiz


Answers are provided below

True or false?


Question 1: Best practice for telemedicine includes providing care through a system that not only allows you to hear the patient, but also see the patient. 

Question 2: The standard of care applicable for telemedicine services is a more relaxed standard compared to in-person visits. 

Question 3: I should always provide clear follow-up instructions to my patients at the conclusion of the telemedicine visit. 
 
Question 1: True. Telehealth is most effective when a clinician can see patients to make diagnoses, answer questions and document interaction.

Question 2: False. The same standard of care applies to the practice of telemedicine as it does to the practice of traditional in-person care.

Question 3: True. You should provide the patient or the patient’s agent clear, appropriate and accurate follow-up instructions in the event that any emergency care is needed in relation to the treatment. These should be documented in the patient’s records as well.
 

01/17

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Disclaimer

The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.