By Coverys Risk Management


Telemedicine usage has experienced tremendous growth in recent years, and the pandemic has accelerated this change. In addition to the opportunities for care and savings, telemedicine also introduces new risks and liabilities.

The Case for Telemedicine

Proponents of telemedicine have pointed to many potential benefits:
  • Convenience. Patients may prefer to access care from the comfort of their own home, and this may decrease the likelihood of care being delayed or avoided.
  • Cost savings. Both the organization and the patient may benefit from reduced costs.
  • Access to care. This is especially important for patients who live in rural settings or who have mobility problems. Telemedicine can also help alleviate issues related to provider shortages.
  • Infection containment. Patients who are sick can be treated from the comfort of their homes and have less risk of infecting other patients or providers.

The Telemedicine Boom

Telemedicine existed before the pandemic. However, adoption was slow. During the pandemic, this changed rapidly. As people looked for a way to slow the spread while practicing social distancing, they turned to telemedicine.

At the same time, changes were implemented to make telemedicine more practical. Normally, providers must be licensed both in the state where they are practicing and in the state where the patient is located. However, some states created waivers to amend this requirement and streamline the process of practicing medicine across state lines. According to the Federation of State Medical Boards, as of January 19, 2022, 19 states have long-term or permanent interstate telemedicine rules.

CMS also created new rules to expand telehealth coverage for Medicare enrollees during the pandemic, a change that many seniors took advantage of. According to a report produced by researchers in the HHS’s Office of the Assistant Secretary for Planning and Evaluation, the number of Medicare visits conducted using telehealth went from 840,000 in 2019 to 52.7 million in 2020, a 63-fold increase. 

Telemedicine is now being used in all types of healthcare organizations, including hospitals, urgent care, clinics, nursing homes, and physician practices. AMA’s Physician Practice Benchmark Survey found that the percentage of physicians in practices using videoconferences for patient visits increased from 14.3% in September 2018 to 70.3% in September 2020.

Likewise, a McKinsey & Company study found that in April 2020, telehealth utilization was 78 times higher than pre-pandemic levels, and in February 2021, telehealth utilization had stabilized at 38 times higher than pre-pandemic levels. The same study found that 40% of consumers plan to continue using telemedicine going forward.

It’s clear that telemedicine is here to stay. With rapid adoption, many organizations have not had time to fully assess their programs. Now, it’s important for all telemedicine providers to take a step back and review their workflows and platforms to ensure all potential risks are identified and addressed for the long term.

Potential Risks Associated With Telemedicine

So far, Coverys has not seen many telemedicine-related claims. However, the potential for liability is there, and as usage continues to increase, more claims may follow.

Potential telemedicine claims include both claims associated with care regardless of the delivery method and claims linked to telemedicine specifically.

For example, claims may stem from a missed or delayed diagnosis, inadequate testing, communication breakdowns, and prescribing errors. These claims could happen in any setting, although the telemedicine care delivery format could contribute to incidents. For example, providers may miss symptoms that would have been obvious in person, leading to a delayed diagnosis.

Other claims may relate to telemedicine directly. For example, claims may stem from a failure to convert a telemedicine visit to an in-person visit when the latter is necessary. Claims could also result from a perceived deviation from the same standard of care applied to in-person visits.

Technical glitches could contribute to claims, as could a lack of training on the technology. For example, if a picture does not load, the provider may not have the information necessary to make a diagnosis and provide care.

Other issues could arise if providers seem distracted during telemedicine visits. It’s common for people to multitask while using a screen, but if this occurs during visits, patients may worry that they’re not receiving a high standard of care.

The bottom line is that the same documentation and standard of care requirements for in-person visits hold true for providers delivering care in a virtual environment.

Telemedicine Risk Management Best Practices

The adoption of telemedicine necessitates new risk management strategies. Consider the following:
  • Organizations must keep up with evolving rules and regulations. This includes new interstate licensing requirements, as well as requirements related to prescribing, informed consent, and privacy. Notably, HHS issued an emergency notification in response to COVID-19 allowing providers to use popular video chat applications, such as Zoom and Skype. However, providers are still required to inform patients of privacy risks and to use all available encryption and privacy modes. Public-facing applications like Facebook Live are not allowed. Ensuring that HIPAA-compliant platforms are utilized is key.
  • A high standard of care must be maintained. The standard of care for telemedicine visits should be the same as the standard of care for in-person visits.
  • Comprehensive policies and procedures must be in place for patient selection, emergency care, conversion to in-person care, and follow-up. Organizations should consider which cases are suited for telemedicine and which cases require in-person care. Symptoms must be considered, but other issues, such as language barriers, may also contribute to decisions over whether telemedicine is appropriate. Screening should be in place before telemedicine visits occur.
  • Informed consent is essential. Patients must understand how the visit will occur, and they must accept the risks and benefits associated with telemedicine. Also, patients need to be informed of the limitations of the equipment and the technology.
  • Policies regarding prescribing should take into account both patient care and regulations. In some cases, an in-person visit may be appropriate before a prescription is issued. In response to the pandemic, HHS says the DEA made changes related to prescribing controlled substances via telemedicine. However, changes to these rules may be forthcoming.
  • Proper training and education are needed for the patient and healthcare providers using telemedicine. This should cover both technology and behavior. Patients should also be told what is and is not appropriate during visits.
  • Proper documentation is necessary. In addition to documenting care, patient consent, the technology used, various communications, and any technical problems, it’s also important to document patient and provider location details that can impact interstate licensing requirements. Finally, it’s important that documentation is integrated into the electronic medical record.
Telemedicine is here to stay, so the risks must be proactively identified and managed. This involves staying educated, informed, and regularly reviewing and updating policies and procedures.
 
This article was, in part, based on the Coverys presentation “Telemedicine: Increase Your Risk Management Bandwidth in a Changing Healthcare Environment,” presented by Judy Klein, PA, CPHRM, FASHRM, Manager, Risk Management & Analytics.


Copyrighted. No legal or medical advice intended. This post includes general risk management guidelines. Such materials are for informational purposes only and may not reflect the most current legal or medical developments. These informational materials are not intended, and must not be taken, as legal or medical advice on any particular set of facts or circumstances.