Manage Telemedicine Risks

Telemedicine: Managing Your
Risks
Presented by Cathy Bryant and Kassie Toerner
June 23, 2020

Kassie ToernerCathy Bryant
Speakers

The information and opinions in this presentation and the supplemental materials
are provided “AS IS” and should not be used or referred to as primary legal
sources, nor construed as establishing medical standards of care for the purposes
of litigation, including expert testimony. The standard of care is dependent upon
the particular facts and circumstances of each individual case and no
generalization can be made that would apply to all cases. Neither the presenter,
Texas Medical Liability Trust, Texas Medical Insurance Company, or Lone Star
Alliance, Inc., a Risk Retention Group warrants the accuracy or completeness of
the information presented herein and each disclaims all liability that may arise
from the reliance on statements and information presented. The information
presented should be used as a resource, selected and adapted only with the
advice of your attorney. It is distributed with the understanding that neither the
presenter, Texas Medical Liability Trust, Texas Medical Insurance Company or Lone
Star Alliance, Inc., a Risk Retention Group are engaged in rendering legal services.
Disclosure

Alternative to in-person visits
Offer care from a remote location

▪ understanding the legal risks of
telemedicine;
▪ planning how to use telemedicine;
▪ documenting the telemedicine visit; and
▪ tips on successfully conducting
telemedicine visits.
We will discuss how to manage the risks
associated with telemedicine by:

▪ Claims of malpractice liability involving telemedicine are rare.
▪ In general, claims are similar to those for in-person care. This
includes:
▪ incorrect diagnosis
▪ incorrect interpretation of an image
▪ Common allegations associated with telemedicine visits
include:
▪ Allegations of miscommunication or patient not understanding
▪ Allegations that the telemedicine visit is not as effective as in person
▪ Privacy and security allegations
Legal risks and litigation

Know the law in the state where the patient is located
▪ Licensure
▪ 49 state boards, plus the medical boards of District of Columbia, Puerto Rico, and the Virgin Islands, require that physicians engaging in telemedicine
to be licensed in the state in which the patient is located.
▪ 12 state boards issue a special purpose license, telemedicine license or certificate, or license to practice medicine across state lines to allow for the
practice of telemedicine.
▪ 6 state boards require physicians to register if they wish to practice across state lines.
▪ Reimbursement - Medicaid
▪ All states and the District of Columbia provide reimbursement for some form of live video in Medicaid fee-for-service.
▪ 14 states reimburse for store-and-forward.
▪ 22 states reimburse for remote patient monitoring.
▪ 8 states reimburse for all three, with certain limitations.
▪ Reimbursement – Private Payer
▪ 40 states and the District of Columbia govern private payer telehealth reimbursement policies.
▪ 6 states have private payer parity laws.
Source: Federation of State Boards “Telemedicine Policies Board by Board Overview”
State laws and licensing

▪ You need a license in the state
where the patient is located.
▪ Minor exception for your own
patients that you usually see here
in Texas.
Practicing across state lines

Medicare Telemedicine Health Care Provider Fact Sheet
Mar 17, 2020
https://www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-
health-care-provider-fact-sheet
Centers for Medicare and Medicaid
Service

HIPAA
Effective March 20,2020, the HHS Office for Civil Rights (OCR)
will exercise enforcement discretion and 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.
For more information:
https://www.hhs.gov/about/news/2020/03/20/ocr-issues-guidance-
on-telehealth-remote-communications-following-its-notification-of-
enforcement-discretion.html?language=es
https://www.hhs.gov/hipaa/for-professionals/special-
topics/emergency-preparedness/index.html
We are empowering medical
providers to serve patients
wherever they are during this
national public health emergency.
We are especially concerned
about reaching those most at risk,
including older persons and
persons with disabilities.
-Roger Severino, OCR Director.
“
Medical privacy and security (HIPAA)

▪ Vendor agrees to enter into a Business Associate Agreement
▪ Encryption: AES 256 for transmission
▪ Data center, redundant infrastructure
Guaranteed uptime
▪ Evidence of Security Assessments
▪ ONC certification
▪ PCI compliance if payments taken in the system
Medical privacy and security (HIPAA)

Telemedicine protocols
Rule 174.3
Telemedicine complaint notice
Rule 174.4(3) and 178.3
Telemedicine privacy notices
Rule 174.4 & 174.6
TMB FAQs on telemedicine
http://www.tmb.state.tx.us/idl/5AE2421D-
56A8-77A8-F418-D83073DB4747
Texas Medical Board
Texas telemedicine requirements

• In Texas, telemedicine involves a health care provider’s medical care
delivered to patients physically located at sites other than where the
provider is located. The primary requirements are:
• The same standard of care that applies to an in-person setting
applies to health care services or procedures provided by
telemedicine.
What are the primary requirements for
telemedicine in Texas?
TMB Rule Chapter 174 —
Telemedicine
Texas Occupations Code
Chapter 111 —Telemedicine
and Telehealth

• Telemedicine services can be provided by:
• (A) synchronous audiovisual interaction between the practitioner and the patient
in another location;
• (B) asynchronous store and forward technology, including asynchronous store and
forward technology in conjunction with synchronous audio interaction between the
practitioner and the patient in another location, as long as the practitioner uses
clinical information from:
• (i) clinically relevant photographic or video images, including diagnostic images; or
• (ii) the patient's relevant medical records, such as the relevant medical history,
laboratory and pathology results, and prescriptive histories; or
• (C) another form of audiovisual telecommunication technology that allows the
practitioner to comply with the standard of care described in Section 111.007,
Texas Occupations Code.
What are the primary requirements for
telemedicine in Texas?
TMB Rule Chapter 174 —
Telemedicine
Texas Occupations Code
Chapter 111 —Telemedicine
and Telehealth

RULES. The Texas Medical Board, in consultation with the commissioner of insurance, as appropriate, may
adopt rules necessary to:
(1) ensure that patients using telemedicine medical services receive appropriate, quality care;
(2) prevent abuse and fraud in the use of telemedicine medical services, including rules relating to the filing of
claims and records required to be maintained in connection with telemedicine medical services;
(3) ensure adequate supervision of health professionals who are not physicians and who provide telemedicine
medical services; and
(4) establish the maximum number of health professionals who are not physicians that a physician may
supervise through a telemedicine medical service.
TX Occ Code Sec. 111.004.

A health professional providing a
health care service or procedure as a
telemedicine medical service is
subject to the same standard of care
that would apply to the provision of
the same health care service in an in-
person setting.
The “problem” with telemedicine in
Texas

▪ Emergency COVID-19 rule — TMB FAQ April 9, 2020
“3. What types of care can be provided by a phone-only
encounter?
Physicians may now use phone-only encounters to
establish a doctor-patient relationship. Physicians may
also continue to do follow-up care by phone-only
encounters.”
Source: Texas Medical Board FAQ
http://www.tmb.state.tx.us
Telephones for telemedicine

▪ Policies and procedures for telemedicine
▪ Staff training
▪ Educating patients
Planning for telemedicine

https://www.texmed.org/Telemedicine/
Policies and procedures for telemedicine

Policies and procedures
for telemedicine

Informed Consent
(1) Physicians that communicate with patients by
electronic communications other than telephone or
facsimile must provide patients with written or
electronic notification of the physicians' privacy
practices prior to evaluation or treatment via a
telemedicine medical service.
In addition, a good faith effort must be made to obtain
the patient's written or electronic acknowledgement,
including by e-mail, of the notice.
TMB Rule Section 174 —
Notice to patients

Telemedicine protocols
Rule 174.3
All physicians utilizing telemedicine medical
services in their practices shall adopt protocols
to prevent fraud and abuse through the use of
telemedicine medical services.
In order to establish that a physician has made
a good faith effort these protocols must be
consistent with standards established by the
Health and Human Services Commission
pursuant to §531.02161 of the Government
Code.
Texas Medical Board

Telemedicine complaint notice
Rule 174.4(3) and 178.3
Texas Medical Board

§174.4(3) Complaints to the Board
Physicians that utilize telemedicine medical services must provide
notice of how patients may file a complaint with the Board on the
physician's website or with informed consent materials provided to
patients prior to the telemedicine medical service. Content and
method of the notice must be consistent with §178.3 of this title
(relating to Complaint Procedure Notification).
§178.3 Complaint notification - Methods of Notification
(B) if providing telemedicine medical services, by a prominently
displayed link on the provider website; in a provider app; by
recording; or in a bill for services, the approved notification
statement described in subsections (b) and (c) of this section. The
notice must be no less than a 10-point easily readable font, and
with no alterations, deletions, or additions to the language of the
board-approved statement.
TMB Rule Section 174.3
& 178.3 Notice to
patients

Rule 174.4 & 174.6
§174.4 Notice to Patients
Privacy practices.
(1) Physicians that communicate with patients by electronic
communications other than telephone or facsimile must
provide patients with written or electronic notification of the
physicians' privacy practices prior to evaluation or treatment
via a telemedicine medical service. In addition, a good faith
effort must be made to obtain the patient's written or
electronic acknowledgement, including by e-mail, of the
notice.
(2) The notice of privacy practices shall include language
that is consistent with federal standards under 45 CFR Parts
160 and 164 relating to privacy of individually identifiable
health information.
Texas Medical Board

(2) The notice of privacy practices shall include language
that is consistent with federal standards under 45 CFR
Parts 160 and 164 relating to privacy of individually
identifiable health information.
TMB Rule Section 174
Notice to patients

Texas Medical Board
Rule 174.4 & 174.6
§174.6
(a) A health professional providing a health care service or
procedure as a telemedicine medical service:
(1) is subject to the same standard of care that would
apply to the provision of the same health care service or
procedures in an in person setting;
(2) must establish a practitioner-patient relationship; and
(3) must maintain complete and accurate medical records
as set out in §165.1 of this title (relating to Medical
Records).
(b) Adequate measures must be implemented to ensure
that patient communications, recordings and records are
protected consistent with Federal and State privacy laws.

Staff training
▪ Technology
▪ Patient selection for telemedicine
▪ Scheduling instructions
Educating patients
▪ Getting ready for a telemedicine visit
▪ What to expect
▪ What technology will be used (application downloads if needed)
▪ Who initiates the visit
▪ Have list of current medicines available
Staff training and educating patients

Documenting the telemedicine visit

According to AHIMA’s “Telemedicine Services and the Health Record” Practice Brief,
the process for a telemedicine encounter may vary from organization to
organization.
However, there are some basic guidelines for the telemedicine encounter and
documentation requirements.
1. The telemedicine provider must assess the patient’s need for telemedicine
services/orders through an identification assessment process.
2. Once the need is confirmed a telemedicine appointment can be scheduled and executed.
3. The telemedicine provider is responsible for accurately documenting all required content
during the telemedicine encounter.
4. The telemedicine provider completes the telemedicine encounter and will review
telemedicine orders.
5. The telemedicine provider will incorporate telemedicine orders into the treatment plan.
6. Documentation of all steps and follow up is required.
At a minimum, AHIMA
recommends that each
telemedicine record contain
the following:
▪ patient name
▪ identification number
▪ date of service
▪ referring physician
▪ consulting physician
▪ provider organization
▪ provider location
▪ patient location
▪ telemedicine order
▪ type of evaluation
performed
▪ informed consent
▪ evaluation results
▪ diagnosis/impression
▪ recommendations for
further treatment
Source:
https://healthsectorcouncil.org/wp-
content/uploads/2018/08/AHIMA-
Telemedicine-Toolkit.pdf
Recording content: General standards/
requirements

Source: https://texreg.sos.state.tx.us/public/readtac$ext.ViewTAC?tac_view=4&ti=22&pt=9&ch=165&rl=Y

Contents of Medical Record. Regardless of the medium utilized, each licensed physician of the board shall
maintain an adequate medical record for each patient that is complete, contemporaneous and legible. For
purposes of this section, an "adequate medical record" should meet the following standards:
(1) The documentation of each patient encounter should include:
(A) reason for the encounter and relevant history, physical examination findings and prior diagnostic test
results;
(B) an assessment, clinical impression, or diagnosis;
(C) plan for care (including discharge plan if appropriate); and
(D) the date and legible identity of the observer.
(2) Past and present diagnoses should be accessible to the treating and/or consulting physician.
(3) The rationale for and results of diagnostic and other ancillary services should be included in the medical record.
Documenting the telemedicine visit —
Texas Medical Board Rule Chapter 165

(4) The patient's progress, including response to treatment, change in diagnosis, and patient's non-compliance
should be documented.
(5) Relevant risk factors should be identified.
(6) The written plan for care should include when appropriate:
(A) treatments and medications (prescriptions and samples) specifying amount, frequency, number of refills,
and dosage;
(B) any referrals and consultations;
(C) patient/family education; and
(D) specific instructions for follow up.

(7) Include any written consents for treatment or surgery requested from the patient/family by the physician.
(8) Include a summary or documentation memorializing communications transmitted or received by the physician
about which a medical decision is made regarding the patient.
(9) Billing codes, including CPT and ICD-9-CM codes, reported on health insurance claim forms or billing statements
should be supported by the documentation in the medical record.
(10) All non-biographical populated fields, contained in a patient's electronic medical record, must contain accurate
data and information pertaining to the patient based on actual findings, assessments, evaluations, diagnostics or
assessments as documented by the physician.

(11) Any amendment, supplementation, change, or correction in a medical record not made contemporaneously
with the act or observation shall be noted by indicating the time and date of the amendment, supplementation,
change, or correction, and clearly indicating that there has been an amendment, supplementation, change, or
correction.
(12) Salient records received from another physician or health care provider involved in the care or treatment of the
patient shall be maintained as part of the patient's medical records.
(13) The board acknowledges that the nature and amount of physician work and documentation varies by type of
services, place of service and the patient's status. Paragraphs (1) - (12) of this subsection may be modified to
account for these variable circumstances in providing medical care.

▪ The encounter; interview, assessment, limitations of the visit.
▪ Document the plan and the patient’s understanding.
➢ Reinforce any care provider actions, such as calling in a
prescription, labs, etc.
➢ Reinforce any actions that the patient will take, such as
increasing activity, changing diet, and complying with
medication.
➢ Review questions and answers.
▪ Document the guidance provided on what to watch for should a
problem worsen.
▪ Document instructions for follow-up questions or concerns.

Tips on
successfully
conducting
telemedicine visits

▪ “Webside Manner” is the new bedside manner.
▪ A webcam creates an intimate vantage point, it sees everything.
▪ Room design is important, enables comfortable and professional interaction.
▪ Camera position: place the camera above the face for an “accurate estimation of
gaze” and too close it can cause patients to feel like they don’t have personal
space.
▪ Light source behind the camera will illuminate your face.
▪ Screen resolutions for the best image quality are 1080p or 720p and a monitor
with an aspect ratio of 16:9.
“Webside” Manner
Source: TMLT SlideShare “What Every Physician Needs to Know About “Webside”
Manner” https://www.slideshare.net/tmlt

TMA
telemedicine
visit checklist

Conducting a successful telemedicine
visit
Source: The Rapid Transition to Telemedicine: Insights and Early Trends
Optimizing the Telemedicine Patient Experience
Patients experiencing telemedicine gave high ratings to their care providers, suggesting the efficacy of this
model for nonurgent medical visits. To make these visits optimally successful, providers should focus on four key
communication skills and tools to improve their interpersonal connection with patients, which will also help
smooth out some of the difficulties associated with virtual interaction: authenticity, agenda setting, empathy,
and closing checklists.

Conducting a successful telemedicine
visit
Source: The Rapid Transition to Telemedicine: Insights and Early Trends
▪ Authenticity: Be genuine. Be more conscious of the warmth of opening and closing greetings. Confirm that
the patient can hear and see you clearly. Avoid interruptions.
▪ Agenda setting: Identify and confirm the patient’s priorities at the outset and communicate how these
priorities will be addressed.
▪ Empathy: Consistently convey empathy through language. Check in deliberately about patients’ worries or
concerns throughout the visit and especially at the close.
▪ Closing checklists: Bring structure to officially closing out the session so that patients know what to expect.
Summarize the post-visit plan, reinforcing patient and provider actions. Review questions and answers. Offer
instructions for follow-up concerns.
Four Essentials of Effective Telemedicine, by Press Ganey Chief Experience Officer Chrissy Daniels

“The rapid adoption of telehealth has enabled caregivers to meet the
needs of patients with the levels of attentiveness, expertise, and
empathy provided during an in-office visit.”
"If caregivers actively adapt their processes and behaviors to the
telemedicine environment, they can effectively build the unbreakable
bonds of trust that are so critical to patient-centered care.”
Patrick T. Ryan, chairman and CEO of Press Ganey
Patient satisfaction
Source: Patients Equally Satisfied with Virtual Encounters Compared to In-Person Visits
Survey by Mandy Roth, May 21, 2020 https://www.healthleadersmedia.com/innovation/survey-patients-equally-
satisfied-virtual-encounters-compared-person-visits

Navigating federal and state rules on telemedicine
Investigations
Time away from patient care to deal with the investigation
Financial impact to your practice; additional expenses and loss of revenue
Fines and penalties
Impact of non-compliance?

Manage Telemedicine Risks

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