Telehealth Offers Advantages for Practices, But Liability Risks Remain

In the first half of 2020 — the beginning of the COVID-19 pandemic — telehealth experienced extraordinary growth as social distancing protocols, concern over spreading the virus, and other pandemic realities spurred demand and adoption. While this growth has receded since that time, usage remains well above pre-pandemic levels and the regulatory environment remains dynamic.¹

Telehealth technology is improving and jurisdictions^* continue to adjust regulations to accommodate an evolving healthcare environment.² Patients — particularly digital native younger generations — are now expecting and seeking out this alternate care model. But along with the advantages that telehealth offers both providers and patients, there are also liability and compliance risks to consider.³

The Dynamic Regulatory Environment in Telehealth

Before the pandemic, 36 states required insurance coverage of telemedicine visits, 25 limited cost sharing, 15 required reimbursement parity with in-person visits, and 3 required coverage of audio-only telemedicine visits.²

Since the onset of the pandemic, 22 jurisdictions (as well as Medicare) changed or added requirements.²

Requirements to cover telehealth generally (and audio-only telehealth specifically) as well as parity in provider reimbursement and patient cost sharing² helped facilitate the growth of telehealth in early 2020.

The future of telehealth regulations, however, remains highly dynamic post-pandemic. It is yet unclear if the lowered regulatory barriers enacted temporarily in response to the pandemic will become permanent. Some states began pulling back on their regulations post-pandemic¹ and temporary emergency policies remain siloed from their permanent telehealth policies in many states.⁴

The Center for Connected Health Policy is a useful resource for understanding state-level policies. When engaging in telehealth services across jurisdictional lines, however, it is still wise for providers to consult with their business attorney and insurance carrier to ensure compliance and liability coverage.

The following resources provide useful guidance on the relevant state laws when practicing telehealth — particularly across borders — as well as the potential medical liability risks.

• AMA: “Telehealth Quick Guide”
• Federation of State Medical Boards: “Telemedicine Policies: Board by Board Overview”

Telehealth Demographics, Pre-Pandemic and Post-Onset

Despite incremental growth, telehealth usage prior to 2020 remained a small fraction of total claim lines through early 2020.⁵ Spurred by the realities of the pandemic and subsequent COVID-related liability protections and regulatory changes,^1,2 telehealth saw a dramatic increase in usage^† but fell to lower levels by the end of 2021.⁵

Telehealth Risks and Benefits

Telehealth is credited with improving patient access and enabling cost efficiencies, among other benefits. This and evolving state and federal telehealth legislation^1,2,4 may explain the rapid increase in its utilization. Despite the advantages, telehealth has liability risks, such as privacy, security, patient confidentiality, credentialing, and misdiagnosis due to a lack of continuity of care. The still-evolving regulatory environment is also a potential risk for providers as state and federal regulators update policies to address evolving technology and post-pandemic realities.^1,2,4

Additionally, the soft skills that may come naturally in an in-person patient encounter may need to be adjusted for remote encounters. Telehealth providers should evaluate their “webside manner” and processes. For example, equipment should be positioned to simulate direct eye contact, active listening cues may need to be exaggerated, and posture and facial expressions may need adjustment. Seemingly minor electronic communication strategies can significantly affect the success of a telehealth encounter. Providers should also be sensitive to technology challenges that may impact some patients, including a lack of broadband internet access or an unfamiliarity with required communication technology.³

Physicians who adopt telehealth also have administrative considerations that may pose a challenge and liability risk. For instance, professional licensure portability and individual state mandated practice standards present major challenges. There are significant differences among state telehealth laws, and the laws are constantly changing. Federal and state privacy laws and regulations also apply to the telehealth encounter.⁶ Physicians should be aware of telehealth laws, regulations, and other relevant statutes in their own state as well as in the state of every patient in their telehealth practice. Understanding the laws is paramount to understanding the medical liability risks that may be involved in the various stages of providing telehealth.

Medical Liability Risk Reduction Strategies

Medical professionals providing virtual visits must work harder to reduce practice liability exposures. These risk management recommendations can help enhance patient safety and reduce risk.

Understand All Applicable Laws and Regulations

• Understand that telehealth practice laws and regulations vary from state to state.
  • Check your professional licensure portability to ensure that you are licensed to practice in the jurisdiction where the patient resides.
  • Be aware of online prescribing regulations that vary across jurisdictions.
• Comply with all applicable privacy and security standards for the secure transmission of protected health information between patient, provider, and payers.

Maintain a Positive Patient Experience

• Standardize telehealth patient visits to help minimize the potential for error and to support good communication practices.
• Ensure that the patient has the technology and connectivity necessary to be adequately examined and the capability to utilize the technology needed.
• Take care to ensure that the primary care physician and patient relationship is not fractured with ongoing use of telehealth consultation.

Ensure Appropriate Standard of Care

• Ensure that the patient’s condition can be appropriately examined via available telehealth equipment. Determination of telehealth appropriateness will need to be made, e.g., whether the patient can be adequately assessed without information normally obtained during an office visit.
• Take steps to ensure that you are examining and prescribing for the correct patient. For example:
  • Ask the patient to hold up a driver’s license to the camera and compare the information on the identification card to the information provided by the patient.
  • Run an insurance eligibility check, confirming the patient’s name, address, date of birth, and Social Security number.
  • If the patient has been seen before, ask a series of questions on prior medical history to determine if the patient responses match what is in the medical records.

Fully Document the Virtual Patient Encounter

• Thoroughly document the encounter as you would any face-to-face encounter, including all communications with or about the patient, review or ordering of tests/results and follow-up recommendations, coordination of care, etc.
• Document the informed consent process and confirmation, including that the patient agrees to and understands the limits of confidentiality when communicating via an electronic medium and that it may be determined that telehealth is not appropriate for the diagnosis and treatment of their condition.
• Document any technical issues that interfered with, delayed, or complicated the telehealth encounter. For example:
  • Poor internet connectivity or signal quality
  • Camera or device malfunction
  • Tele-presenter unavailability
  • Patient inability to manage technical aspects of the exam
  • Peripheral device unavailability

While telehealth use dropped post pandemic, the technology continues to advance⁷ and the rising rate of adoption in late 2021⁵ suggests continued interest in the technology by both providers and patients. As with all advancement in the field of medicine, the advantages of adopting a new way of practice should be considered carefully and the risks assessed. It is important to consult with your medical professional liability insurance provider on your individual policy to ensure that you are adequately covered for the scope of practice and consult with your business attorney as needed.

Notes

* includes the 50 U.S. states and the District of Columbia

† percent of medical claim lines

‡ share of outpatient visits by telehealth

§ percent of telehealth claim lines

References

1. Justin Lo, et. al. “Outpatient Telehealth Use Soared Early in the COVID-19 Pandemic but Has Since Receded.” Health System Tracker. Peterson-KFF. 2/10/2022.

2. JoAnn Volk, et al. “States’ Actions to Expand Telemedicine Access During COVID-19 and Future Policy Considerations.” Commonwealth Fund. June 2021.

3. Mohit Joshi. “Telehealth Has Huge Potential, But Challenges Remain.” Forbes, 2/12/2020.

4. The Center for Connected Health Policy. “State Telehealth Laws and Reimbursement Policies Report, Fall 2021.” The National Telehealth Policy Resource Center. October 2021. (PDF)

5. FAIR Health. “Monthly Telehealth Regional Tracker.” (data compiled from monthly reports Jan. 2020 through Dec. 2021.)

6. Office for Civil Rights, U.S. Department of Health & Human Services. “Where Can Health Care Providers Conduct Telehealth?” Content last reviewed on 3/27/2020.

7. Bill Siwicki. “Advances in Telemedicine Are on the Way in 2022.” Healthcare IT News. 12/ 20/2021.