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Telehealth in the Era of COVID-19 and Beyond 

By Thomas J. Bryant, ARM 

President, Physicians Insurance 

In this new era of practicing medicine during the COVID-19 pandemic, there is no question that telemedicine will play an important and significantly expanded role in most practices and care settings for the foreseeable future.  

Although the terms telehealth and telemedicine tend to be treated as synonyms, the former encompasses the broadest scope of remote health care services. This includes care communication that may be asynchronous (information that is collected, stored, and reviewed without the presence of the patient) and/or remote patient monitoring, along with more traditional synchronous patient treatment communication, where the technology is used to close a physical distance between physician and patient, who are both participating in real-time.  

During the pandemic many payers and state medical boards temporarily relaxed previously stringent restrictions on covered telehealth options, giving physicians many more opportunities and options to provide these services to patients. Since March, when Massachusetts first required insurance companies to cover services provided via telehealth, remote health care in the state has skyrocketed.

Of course, physicians should check with their malpractice insurance broker to ensure their policy covers the provision of care they are planning via telemedicine and to review potential liability and risks unique to telemedicine. As we have previously touched upon, if you are practicing in a single state, adding telemedicine is reasonably straightforward from a professional liability standpoint. And with care, you can prepare yourself to expand into other states too, as long as you coordinate with a specialized broker, follow your specialty’s guidance, and meet the regulatory burden. 

Some Questions to Consider 

Does my medical professional liability policy draw a distinction between traditional care, telemedicine, and other telehealth services and scenarios?  

If you are covered by an admitted carrier (an insurance carrier who has been approved by the state — for Massachusetts, this would be the Division of Insurance), it is likely that your insurer has been adapting applications and policy language as needed to compensate for the expansion of telemedicine we are experiencing as a result of the pandemic. If you aren’t already dealing with an admitted carrier, it will be important to understand policy terms. It is wise to talk with a licensed broker specializing in medical professional liability if you have any questions on your current coverage. 

Are there malpractice risks specific to telemedicine?  

In most cases, liability is similar to the risks the provider would face in a traditional, in-person setting. 

Is informed consent necessary for telehealth visits?  

Yes, inadequate informed consent communication between a health care provider and the patient/family is a top factor contributing to claims, according to industry research. The same standard of care applies to telehealth as in-person visits. Your telehealth platform may have forms or procedures to help ensure informed consent issues specific to the telehealth environment are addressed. 

Can I treat out-of-state patients using telehealth?  

Before providing services, do your best to identify the patient and his or her location. During the COVID-19 pandemic, some states have relaxed licensing requirements allowing emergency licenses to facilitate physicians providing care for their existing patients who may be unable to cross state lines. To learn about other states, read more from the Federation of State Medical Boards.

How can I ensure my telehealth practice is HIPAA compliant?

Although federal officials have made some changes that relax stringent enforcement guidelines, be sure to select a telehealth product that is secure and HIPAA compliant. The Center for Connected Health Policy’s latest guide, updated in May, says officials may “waive penalties for HIPAA violations against health care providers that serve patients in good faith through everyday communications technologies, such as FaceTime or Skype, during the COVID-19 nationwide public health emergency. “ But by using a vendor that is HIPAA compliant, practices will be proactively mitigating any potential privacy violations.

In closing, ask your broker questions if you are at all unclear. Here are some current best practices for providing telehealth services (CMIC Group, 2020): 

• Select a product that is secure and HIPAA compliant.
• Confirm that you are appropriately credentialed and privileged to provide telehealth services and that your policy complies with documentation and record-retention requirements.

• Before providing services, do your best to identify the patient and his or her location.
• Inform your patient of your name and credentials.
• Document the visit as you would a telephone message or an office visit; make sure you are documenting the physical location of the patient and platform of the visit. Keep your notes consistent across the practice and make sure they are easily accessible for future use.
• Be careful sharing personal cell phone information with patients and communicating over social media

Reference Links for further reading: 

Learn about the Telehealth Initiative supported by the Massachusetts Medical Society.

Learn more at the Massachusetts Medical Society’s COVID-19 resource site.

Physicians Insurance President Thomas J. Bryant, ARM, is a licensed property, casualty, life, accident, and health broker in all six New England states and was an adjunct clinical assistant professor in the School of Health Sciences at Bryant University during the period from 2016 through 2018. Most recently Tom developed a video presentation on malpractice basics for Harvard Medical School fourth-year students, and he has participated in NEJM Resident 360 virtual panels on topics related to financial matters important to early-career physicians.

Is it time to examine your current policy? What you don’t know can hurt you. For more information on how Physicians Insurance can support your practice and help you mitigate risk, call 800.522.7426.