By Nicholas Jimenez
As in other areas of life, healthcare by videoconference has seen significant growth during the COVID-19 pandemic. Some of this growth has been spurred by recent changes to regulatory requirements to improve access to telehealth. In the past year, numerous changes have been made to HIPPA requirements, insurance coverage, and other relevant areas of telehealth treatment.
The term “telehealth” includes the use of videoconferencing, the internet, communications via telephone, and other telecommunications technologies to support virtual patient health care. During the COVID-19 national emergency, the Office of Civil Rights at the Department of Health and Human Services “will not impose penalties for noncompliance with the regulatory requirements under the HIPAA Rules against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency.” The nationwide emergency was most recently extended indefinitely by the President in March of 2021. While telehealth is expected to see continued growth, there are still a couple of areas where practitioners should exercise caution, including obtaining informed consent.
First, make sure you identify your patient. Then, identify yourself to your patient in writing. It seems basic, but this simple step is necessary to establish the provider-patient relationship (and can be surprisingly easy to miss during a quick call).
You cannot be the healthcare provider to an unidentified person. Next, remember that while it is up to you as the practitioner to determine whether a particular condition is appropriate for diagnosis and/or treatment via telemedicine, the decision to proceed with treatment requires the patient’s informed consent.
Informed consent is an area where telehealth providers occasionally run afoul. However, a well-designed informed consent form can help you avoid several different problems related to telehealth. To the extent your current informed consent forms do not include this information, informed consent forms for the use of telemedicine services should consist of:
i. Identification of patient, practitioner and practitioner’s credentials
ii. Types of activities permitted using telemedicine, what the patient should expect from the visit
iii. Agreement by the patient that it is the practitioner’s role to determine whether a condition is appropriate for a telemedicine encounter
iv. Details on security measures in place during telemedicine services
v. Hold harmless clause for info lost due to technical failures; and
vi. Requirement for express patient consent to forward patient-identifiable info to a third party
Informed consent can be obtained verbally, but evidence documenting informed consent for the use of telehealth services must be obtained and maintained. Electronic forms are sufficient to satisfy this requirement. The Board of Medicine also permits informed consent to be documented through notes in the patient’s health record. However, this approach may not be the best option to detail all the information needed by a telehealth provider.
Telemedicine is a tool that will see continued growth during the COVID-19 pandemic. Practitioners should remember that treatment via telemedicine is held to the same standard of care as treatment in traditional, in-person encounters. Utilizing telehealth-specific informed consent forms can help ensure that you avoid one of the most common pitfalls afflicting telehealth providers.
Nick Jimenez is an associate in Goodman Allen Donnelly’s Norfolk office where he specializes in healthcare law and commercial litigation. goodmanallen.com
