The lockdown caused by COVID-19 has led to a surge in medical advice being delivered by doctors over the internet. This unprecedented increase in telemedicine raises a number of thorny legal questions relating to security, jurisdiction, privacy and consent. To help provide some clarity regarding the legal concerns of telemedicine, we asked Roia Shefayee, a Priori network healthcare attorney.
Roia Shefayee is a Silicon Valley-based commercial attorney and an alum of White & Case LLP and Baker McKenzie. She is currently Vice President and General Counsel of a healthcare company as well as the Managing Partner of a corporate transactions and litigation firm.
What security and privacy risks should be considered when providing telemedicine?
When choosing a telemedicine platform, it’s important to ensure that the platform is HIPAA compliant. Also, providers and facilities offering telemedicine should update their privacy policies and patient consent forms informing patients of their rights and responsibilities concerning and agreement to the modality. Finally, an inclusion of cyber security insurance covering potential data breach is warranted.
How should a provider of telemedicine deal with how laws vary from state to state?
Generally, providers are only permitted to practice within the state they are licensed. However, many states’ medical licensure laws allow for exceptions for in-state licensing of medical providers in an emergency. The COVID-19 pandemic is deemed a public health emergency and in response, a number of states have modified their in-state licensure requirements to help combat the spread of the virus and ease access to medical care.
Outside of emergencies, providers are required to obtain a license from each state in which he/she wishes to practice whether via telemedicine or otherwise. However, some state boards do permit for special licenses which permit physicians to practice under specified terms, such as via telemedicine.
What do you predict, if anything, will change in the regulatory regime following COVID-19?
COVID-19 will change the healthcare industry in many ways, and telemedicine is an important part. Prior to COVID-19 everyone was sluggish to adopt the modality, including private payers, regulatory agencies, providers who generally are hesitant to try new platforms, the patient population, and health tech companies that saw a lack of incentive in the market. As a result, telemedicine products introduced to date have been less robust. For instance, some platforms have lacked seamless integration with electronic medical records (EMR) systems, while others have failed to integrate clinical flows and documentation needed to proceed with telemedicine visits. Also, for many, the user interfaces are not very convenient or intuitive.
COVID-19 has forced everyone to go virtual, and healthcare is no exception. To ensure that providers are able to still get to their patient population while at the same time encouraging social distancing, Centers for Medicare and Medicaid Services relaxed its rules, private payers have jumped on the telemedicine band wagon, Electronic Medical Records companies have become more amenable to integrate with telemedicine platforms, health tech companies have renewed their interest in improving their product offerings, providers have become more amenable to using the platform and consumers will hopefully benefit from this additional option for access to their healthcare providers. One silver lining to this pandemic is that telemedicine is likely here to stay. Post COVID-19, the regulatory regime will likely revise its rules to further accommodate the modality now that it has been put into practice on a much wider scale.
What are the key issues surrounding malpractice and telemedicine?
Generally, providers do not create additional malpractice risk by offering services via telemedicine so long as they comply with states’ licensing requirements, follow standards of care, and document visits appropriately. Where providers lack in any of these areas, they could face malpractice suits. For example, as in traditional care, a provider treating a patient via telemedicine may face malpractice for providing incorrect diagnosis or incorrect interpretations of an image or test result. Similarly, a provider that treats a patient located in a state where he/she is not licensed to practice or a waiver is not applicable, could face malpractice claims. In any case, it is incumbent upon the provider to keep accurate and thorough notes about the visit, the diagnosis provided and any follow up recommendations, among other things.
Is informed consent the same with telemedicine as it is with regular medical advice?
Providers should always ensure that informed consent is obtained for treatment, whether in-person or via telemedicine. However, with telemedicine it is also important to verify that patients understand the potential privacy risks and basic procedures of telemedicine. As such, providers should obtain informed consent specifically for telemedicine. States vary in their requirements for obtaining informed consent for telemedicine from verbal acknowledgement to having a written policy signed. California, for example, permits providers to treat a patient via telemedicine upon obtaining verbal or written consent from the patient. However, best practice is to have the patient sign a written informed consent form prior to commencing the telemedicine visit.
Are there any cross-jurisdictional concerns that providers or patients should consider regarding telemedicine?
Providers should make sure that they are permitted to practice via telemedicine in the states where the patient resides. Also, both providers and patients should be aware that an out-of-state patients’ insurance carrier may not cover the telemedicine visit. Consequently, the visit may need to be paid out of pocket. Finally, providers should determine which states, if any, impose restrictions on prescribing medications across state lines via telehealth.
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