Telemedicine has been a boon to patients and providers, but can expose the parties to risks that are unique to this area. Managing the parties’ expectations and establishing their respective obligations through clear communications, regulatory compliance and written agreements are important first steps in minimizing those risks.
One way providers can manage patient expectations and reduce risk is through the informed consent process. Prior to a telemedicine consultation, the patient should be given information about, and should acknowledge understanding, of:
- The limitations of and alternatives to participation in remote consultation or care;
- The telemedicine practitioner’s inability to perform a physical examination and the need to rely on information from on-site provider(s);
- The possible presence of non-medical, technical personnel during the telemedicine encounter;
- The patient’s right to withdraw his or her consent to the telemedicine encounter at any time; and
- The availability of follow-up care with a local provider.
Providers that contract with or refer to telemedicine practitioners should also ensure that the practitioner is appropriately licensed or certified, and that the telemedicine services comply with state law. Most states, including Florida, require that practitioners engaging in telemedicine be licensed in the state where the patient is located. Further, Florida law prohibits practitioners from providing treatment recommendations or prescribing medications without a documented patient evaluation, including history and physical examination, dialogue between the practitioner and the patient regarding treatment options and the risks and benefits of treatment, and maintenance of contemporaneous medical records.
Privacy and Security
Telemedicine providers are bound by the provisions of HIPAA’s privacy and security rules, as well as more stringent state laws, to the same extent as any other health care provider. Because the use of electronic communications provides additional opportunities for unauthorized uses or disclosures of protected health information, telemedicine providers and the entities with which they contract must be extra vigilant about the privacy and security of patient images and information – both during and after the telemedicine encounter.
Practitioners who provide services to hospital patients must be credentialed and privileged by that hospital. In 2011, the Joint Commission and CMS issued new rules to address the credentialing of telemedicine practitioner by hospitals contracting for telemedicine services from remote telemedicine sites. Hospitals are free to credential and privilege remote telemedicine practitioners through their usual processes. They also can make credentialing and privileging decisions using credentialing information from the remote telemedicine site, if the remote telemedicine site is accredited by the Joint Commission and the telemedicine practitioner is licensed in the state in which the patient is located. Alternatively, hospitals can adopt the credentialing and privileging decision of the remote telemedicine site if the remote site meets Joint Commission and CMS criteria. In deciding whether to delegate credentialing to distant site telemedicine entities, hospitals should be mindful that they may be liable for the negligent credentialing of a practitioner who provides services to the hospital’s patient.
Contracting and Insurance
Hospitals that use remote telemedicine services are required to have a written contract with the telemedicine provider, which must meet Joint Commission standards. Even those entities that are not required to have written agreements should nonetheless reduce their respective expectations and obligations to writing.
Providers contracting for telemedicine services should verify that the telemedicine practitioner’s professional liability insurance will cover telemedicine encounters. It is also important to verify that the telemedicine practitioner’s professional liability insurance will cover claims in the patient’s or local provider’s state. This is particularly true for offshore telemedicine providers, who may be unable to purchase coverage for claims in the United States. In those cases, the parties may want to consider alternative risk vehicles, such as a captive insurance company.
Telemedicine can offer significant benefits to local providers and their patients if all of the parties are aware of its challenges and take steps to address the regulatory and risk issues associated with telemedicine services.