Before the COVID-19 pandemic, clinician adoption of telemedicine was at an all-time high. A recent American Well survey had reported that 22% of surveyed physicians were already using telemedicine technology to see patients, and another 50% had planned to start using video visits soon. Since the start of the pandemic, however, these percentages have undoubtedly spiked much higher, as clinicians have had to pivot to online care delivery to continue to meet the needs of their patients while minimizing the risk of disease transmission.
And although telemedicine offers many conveniences and potential safeguards in a situation such as the COVID-19 pandemic, in general, it comes with an increased potential for medical practice liability risks. Although the same professional and legal standards apply to both in-person and telemedicine visits, there are some additional legal issues to consider, explains Rebecca Gwilt, a co-founder and partner at Nixon Law Group.
Gwilt recommends the following strategies to help minimize risks associated with practicing telemedicine. (NOTE: These strategies pertain to telemedicine in non-pandemic times; in response to the COVID-19 pandemic, many states have adjusted their requirements and regulations to allow clinicians to quickly begin providing online care. Although the tips below continue to be important, it is also critical for clinicians to stay abreast of state-level changes to requirements and regulations made throughout the pandemic.)
Develop protocols. “Physicians should be thoughtful about developing protocols to identify types of symptoms that may indicate a person should not be seen via telemedicine,” Gwilt says. For instance, “there are very real risks for misdiagnosis of a patient based on information that you can’t gather from a telemedicine visit.”
Review state regulations. The majority of U.S. states require that clinicians possess state license to provide remote medical services, but this can be burdensome for providers who want to practice telemedicine across state lines. Through the Interstate Medical Licensure Compact, an agreement between 29 states, physicians can become licensed in multiple states.
Consult prescribing requirements. State policies on prescribing medication vary, and some states have specific rules on whether telemedicine is adequate for establishing a patient-provider relationship. “Physicians should consult with a health care attorney to determine whether the prescriptions they’d like to write are permitted when the relationship with the patient is strictly via telemedicine,” Gwilt advises. Of note, the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 outlines online prescribing requirements for controlled substances and describes required patient-provider interactions.
Protect health information. HIPAA does not outline specific considerations related to telemedicine, but providers must meet the same HIPAA requirements as if the services were being delivered in person. Verifying a patient’s identity is an additional step that physicians must take during video visits. If the telemedicine platform does not require identity verification, ask patients to hold their driver’s license next to their face and determine the patient’s geographic location to ensure that you are complying with state licensure requirements, Gwilt advises.
Purchase additional coverage. Most professional liability policies cover telemedicine, but Gwilt recommends that physicians purchase cyber liability coverage to reduce their potential liability in the event of a data breach.
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