Telehealth is the use of telecommunications to facilitate healthcare delivery. As such, telehealth is seen as a tool to augment, and not replace, the clinical practice, judgment, and expertise of a healthcare provider. This article enumerates some of the important issues associated with the adoption of telehealth in a medical practice.
Definition
In 2011, AB 415 changed the definition of telemedicine (now referred to as telehealth). The new definition is codified in California Business & Professions Code § 2290.5 and defines telehealth as: “the mode of delivering health care services and public health via information and communication technologies to facilitate the diagnosis, consultation, treatment, education, care management, and self-management of a patient’s health care while the patient is at the originating site and the health care provider is at a distant site. Telehealth facilitates patient self-management and caregiver support for patients and includes synchronous interactions and asynchronous store and forward transfers.”
Physician-Patient Relationship
Providers who wish to employ telehealth as a tool in their practice are required to establish a physician-patient relationship. The minimum requirement is to do so through a face-to-face examination if a face-to-face encounter would otherwise be required in the provision of the same service not delivered by telehealth. Specifically, the Medical Board of California provides that a face-to-face encounter could occur in person or virtually through audio/video technology. Once this relationship is established, all usual communication standards, follow-up requirements, and documentation principles apply.
Standards of Care
Physicians practicing telehealth are held to the same standard of care as with face-to-face office encounters. While California statutes do not create different standards of care for telehealth, there are some professional organizations that set forth specific unique risks.
Consent
Healthcare providers also retain the responsibility to obtain the patient’s informed consent prior to initiating telehealth. California law requires that prior to delivery of healthcare via telehealth, the provider must:
- Inform the patient about the use of telehealth;
- Obtain oral or written consent from patient for this use; and
- Document the consent
Documentation
The California Legislature has expressed its intent that all medical information transmitted during the delivery of healthcare via telemedicine become part of the patient’s medical record. In addition, the consent must be documented in the patient’s medical record.
Prescribing via Telehealth
Under state law, a physician may not prescribe medications via telehealth or the Internet without an “appropriate prior examination.” The question of what is an appropriate telehealth prior examination is not well defined in California law. Unofficially, the Medical Board of California provides that an appropriate prior examination may be conducted through telehealth if the technology is sufficient to provide the same information to the physician if the exam had been performed face-to-face. Physicians are advised to document thoroughly the telehealth-appropriate prior exam in the medical record.
HIPAA and Confidentiality
Health Insurance Portability and Accountability Act (HIPAA) guidelines on telemedicine make it clear that all ePHI should be protected by utilizing a secure messaging solution. The use of Skype and email should not be used for communicating ePHI at a distance. The issues related to HIPAA and secure messaging will be discussed at a later date.
Licensure
Professional licensure portability and practice standards for providers using telehealth are some of the biggest challenges for healthcare providers considering telehealth adoption. As of January 2016, 12 states have passed legislation to adopt an Interstate Licensure option. California, however, has not. Therefore, California physicians seeking to provide care to patients in other states should understand that such action is against current Medical Board of California regulations and may result in sanctions.
Reimbursement
Under state law, health insurers and managed care plans are prohibited from excluding coverage for telehealth services. Individual health plan contracts dictate reimbursement and coverage for these encounters. Since there is no concrete statement that telehealth includes telephone, email, or other remote technology, healthcare providers should research and document why it is medically appropriate in a specific case to provide a healthcare service via these modalities. Additionally, it must be noted that special regulations and requirements limit reimbursement for telehealth for Medicare recipients. Pressure within Congress to expand Medicare coverage of telehealth and remote monitoring services is approaching critical mass. There will be more to come on this issue.
Telehealth ventures often implicate other California and federal regulations and laws beyond medical malpractice protection. This article is not intended to be a complete resource, and CAP encourages members to contact Risk Management for further information related to reducing telehealth medical malpractice liability. For other questions or for legal advice related to regulatory and legal issues, CAP recommends consulting a personal attorney.
Website Resources
The following websites provide additional telehealth resources for physicians:
- California Telehealth Resource Center
- California Telehealth Network
- Medical Board of California: Practicing Medicine Through Telehealth Technology
- American Telemedicine Association
- Center for Telehealth and E-Health Law
- Federation of State Medical Boards
Ann Whitehead is Vice President, Risk Management and Patient Safety for CAP. Questions or comments related to this article should be directed to awhitehead@CAPphysicians.com. Legal guidance for individual matters should be obtained from a retained attorney.