Expert advice on safeguarding your practice when implementing telehealth

Healthcare practitioners utilizing telemedicine, regardless of the modality, must be cognizant of the many pitfalls of violating the rules regulating patient confidentiality, as established by federal and state privacy laws. The Health Insurance Portability and Accountability Act (HIPAA) governs the use and disclosure of protected health information. Technology utilized in this format must adhere to national standards and be periodically assessed by practices to ensure ongoing compliance.

Providers should also consider licensing risks associated with telemedicine. Historically, states have undertaken licensing responsibilities for the health care professions, including qualifications, testing, discipline, and continuing education.

The prevailing community standard concerning the actual care being rendered must be applied regardless of the setting, and clearly not all circumstances are well-suited to virtual evaluation. Clinicians must individually determine, given the nature of their specific practice and patient population, what is appropriate to treat in a virtual setting and what may be ill-advised. In many instances, there is no substitute for a face-to-face encounter with hands-on evaluation.

(Editor’s note: This article has been adapted from its original publication on our sister site Medical Economics.)

To avoid miscommunication and better promote patient understanding, it is recommended that provider websites should identify the situations where telemedicine is available; a similar disclaimer should also appear in the physician service agreement and in the conditions of treatment signed by patients at the outset of the relationship. Practitioners should steadfastly not defer to personal demands by patients if their clinical judgment dictates a different course.

Providers should also consider licensing risks associated with telemedicine. Historically, states have undertaken licensing responsibilities for the health care professions, including qualifications, testing, discipline, and continuing education. Many jurisdictions relaxed the rules during the pandemic using emergency executive declarations, thereby permitting the extraterritorial practice of medicine utilizing virtual technology without a license in the locale where the patient was situated. For the most part, those emergency orders have either been rescinded or expired, and practitioners are encouraged to identify existing rules when treating patients outside of the state where their offices are based. Failure to comply may result in a complaint by the professional licensing board in another jurisdiction.

Litigation frequency—and avoiding malpractice claims

Early in the pandemic, claims for medical negligence declined sharply, and the frequency of trials across the country radically diminished, but the frequency of professional liability actions has returned almost to prepandemic levels. It seems plausible that with more physician visits occurring virtually, there would be an increase in malpractice cases originating in the virtual format. Whether there has been an increased incidence of lawsuits involving telehealth is difficult to assess at this juncture, because claims data typically has an extended reporting period.

Based on the paucity of data currently available, it is not yet known to a reasonable medical probability whether there is, or will be in the future, any change in the frequency of iatrogenic errors or the identities of the specialties most at risk of litigation. One of the keys to avoiding professional liability claims where remote access is being utilized is for clinicians to recognize that telehealth has limitations and should not, therefore, become a substitute for onsite, in-office evaluation. If providers continue to exercise their optimum professional judgment, consistent with the community standard, along with implementing best practices concerning continuity of care, proper patient compliance, and education, no readily apparent reasons exist to conclude that there will be any statistically significant increase in the occurrence of professional liability claims involving telehealth.

Regulatory concerns: Protecting a practice’s finances and reputation

To help ensure regulatory compliance and operational consistency in accordance with federal and state laws, as well as applicable community standards, health care providers are also strongly encouraged to periodically audit staff compliance with and the efficacy of their protocols. Violations may result in complaints to licensing boards, the Office for Civil Rights, and even third-party payers, including CMS.

Investigations are inevitably protracted, intrusive, and expensive, and with adverse findings, may produce a variety of unexpected and catastrophic consequences, such as:

• Administrative sanctions.
• Limitations on the ability to practice.
• Monetary fines and penalties.
• Negative publicity on social media, with potentially significant damage to reputation.
• Loss of staff admitting privileges.
• Exclusion from private reimbursement networks and CMS Conditions of Participation.

Proactive management, continuing education, careful and accurate chart documentation, and ongoing evaluation of routine clinical performance before problems arise can all improve the chances of enhanced clinical outcomes, continuity of care, and increased patient satisfaction. All participants in the process must recognize that telehealth is a resource for rendering health care and not a different type of practicing medicine.

Richard Cahill, JD, is Vice President and Associate General Counsel, The Doctors Company, Part of TDC Group.