Protecting Your Practice in the Age of Telecare
By COPIC’s Patient Safety and Risk Management Team
Among other things, 2020 will go down as The Year of Telemedicine. What began as a response to COVID-19 has emerged to become a more permanent shift in health care. A recent report1 by the consulting firm, McKinsey and Company, estimated that 20% of U.S. health care will happen via telecare in 2021, and at least 76% of providers across all specialties and locations currently use telehealth or plan to use some aspect of it.
During the last year, the Centers for Medicare & Medicaid Services (CMS) relaxed restrictions and approved more than 80 new services, and commercial payers are following CMS’s lead with mixed enthusiasm. HIPAA and DEA constraints have also been relaxed, and we’ve witnessed state licensing boards starting to modify rules to make interstate telecare easier and more straightforward.
Medical liability carriers (like COPIC) are taking steps to support providers in this new environment, while trying to foresee implications for patient safety/standards of care. It is possible that the regulatory and liability context for telemedicine will stabilize around a narrowing set of concerns in a few years. But, as we enter 2021, here are the key points from COPIC’s perspective (we use the terms "telehealth," "telemedicine," and "telecare interchangeably):
1) Licensure
For regulators, telemedical services within one’s state of primary licensure are considered today more or less “business as usual.” Providers must be sure their telepractice is consistent with their usual scope of practice and privileges. Regulators will scrutinize services outside a provider’s training or credentials. Some states also impose specific requirements regarding consent and documentation. But, for the most part, services a practitioner offers in the office will be acceptable via telehealth, when this is clinically justifiable.
2) Out-of-state practice
Outside the state where a practitioner is licensed, things are more complicated. Each state has a different tolerance for “extraterritorial” providers rendering care to patients physically located there. Some states explicitly do not allow this. Others accommodate practitioners not licensed in the remote state with various waivers and exceptions. Before COVID-19, telephone (audio only) care across state lines was often treated as “a violation not often enforced.” However, the increased attention on remote video conferencing has made many medical boards realize that their state's legal definition of “telehealth/telemedicine” also fits phone calls. The prudent course looking forward is to expect the long standing, laissez-faire treatment of interstate phone calls to tighten in 2021. COPIC advises you to check the licensing rules in any state where you provide remote care, even by telephone. We understand this will represent a change in practice for many providers. A summary of requirements and waivers may be found at www.fsmb.org/siteassets/advocacy/pdf/states-waiving-licensure-requirements-for-telehealth-inresponse....
3) Prescribing
Telephoning prescriptions across state lines has traditionally not been much of a problem. That doesn’t mean every prescription will be accepted; it means you can usually rely on the pharmacist to know whether they are allowed to cooperate. Obviously, controlled substances invite greater scrutiny. But even these are not prohibited under DEA rules during COVID-19 (the DEA has suspended the requirement for an initial in-person visit). However, a controlled substance prescription must be consistent with guidelines, within the scope of the provider’s usual practice, and accompanied by necessary due diligence. This may mean asking the pharmacist to do any required check of the state’s prescription drug monitoring program.
4) Liability
The medical liability exposures for telemedicine are largely the same as for in-person care. Most of the slips, lapses, and hazards you guard against during hands-on care are not changed much by telecare. Normal guidelines for judgment, consent, and documentation apply. On the positive side, telehealth lends itself to a degree of “cherrypicking.” Telepractitioners should be able to reduce the odds of adverse events through patient selection. The liability question for any telehealth service is, “Is it reasonable?” In some cases, the answer is altered by COVID-19. Some procedures may not be ideal choices in a perfect world, but during current conditions they may be acceptable—or even superior—options. As telehealth is the ultimate PPE during the COVID pandemic, one should consider adding the documentation that the visit was performed via telehealth as a “COVID countermeasure.”
5) Documentation
There are some unique aspects of telehealth documentation. First of all, it’s important to know when a given encounter was a telehealth visit. A good practice is to note the medium (e.g., teleconference, phone, telemetry data review, etc.). If any technical issue prevented optimal communication, that should be noted (e.g., “Exam limited by capabilities of the patient’s cell phone.”). It’s required by some states to record the fact that the patient was aware of the limits of the technology and that there was a backup plan if it failed. Extra steps need to be taken to document consent for recording or photography. You should note any additional parties at either end, such as assistants or relatives. If an in-person visit would have been preferable but was not possible or advisable due to circumstances (e.g., weather, COVID, etc.), this needs to be documented in the disclosure and consent.