Over the past few years, with a large push from the COVID-19 pandemic, telehealth has become a major part of modern healthcare delivery. It has its perks, primarily convenient and safe care, and its pitfalls, limited testing ability, and technological difficulties. In this article, we are not here to discuss the pros and cons of telehealth but to provide optometrists with an overview of the legal aspects of telehealth and how to ensure that both you and your patients are properly protected. If you are already involved in telehealth consultations and remote visits you may be familiar with some of the following topics, if you have not yet come across telehealth opportunities consider this your introduction because you most likely will very soon! According to the CDC, there has been a 154% increase in virtual healthcare in 2020 from 2019 and the momentum is still going.1
Actual consent laws vary by state but obtaining consent to perform a video or telephone visit is required in some way, shape, or form. Some states require consent before only the first virtual visit while others require it for every visit. Some states, like New York, also require that one in-person visit be performed to establish care before remote care can take place. Specifics about state rules and regulations can be found at the website for the Center for Connected Health Policy.2
Patients should be aware of what telehealth is and the limitations of care provided through this modality. This should include a discussion of risks and benefits and of relevant privacy concerns. Consent can be obtained at the start of the visit, but it may be a good idea to send the patient an email or provide information beforehand to read over in case any questions or concerns arise. If your office has a patient portal this can be a great place to make the information and forms available. If anyone else is in the room witnessing the visit on either end, both parties should be aware, and it is recorded in the patient’s chart. Patients do have the right, of course, to refuse telehealth care in which case this would be documented in their chart.3
Monitor Privacy & Security
Privacy and security of telehealth are governed by the Health Insurance Portability and Accountability Act (HIPAA) and the Health Information Technology for Economic and Clinical Health (HITECH) Act. During the COVID-19 pandemic, a national emergency, healthcare providers were, and are still, granted temporary ability to perform remote care by means not fully compliant with HIPAA requirements; that is as long as it is performed in “good faith” and with “reasonable safeguards.”4 Providers should alert patients of privacy risks associated with non-secure platforms and continue to use any available forms of encryption.
Choose Your Platform Wisely
Some of the platforms that can be used under the emergency provision are Facetime, Zoom, and Skype. The permission to use these platforms will not last forever and there are many options for companies to partner with as your more permanent telehealth platform. According to the U.S. Department of Health & Human Services, the list of HIPAA compliant platforms includes, but is not limited to: Zoom for Healthcare, Doxy.me, Cisco Webex, GoToMeeting, Amazon Chime, and Updox.5 The most important factors to consider are usability, security, and customer service. Usability refers to the ease of use for both patient and provider. The platform should either integrate with the electronic record system being used or at least be able to run simultaneously with minimal interruption of clinical workflow. The platform should follow HIPAA compliance in order to ensure the required level of information privacy. The company should also have a process in place for potential breaches along with customer support for all parties. Training should also be provided for staff, providers, and patients as needed.6,7
According to the U.S. Department of Health and Human Services, the greatest legal concern associated with telehealth is making sure that “reasonable precautions” are being taken to comply with HIPAA regardless of the national emergency suspension. “Public-facing” platforms such as Facebook Live or TikTok should never be used for remote care under any circumstance. Public-facing means that parties other than those intended have access to information. Fraud or purposeful transmittance of patient data related to telehealth visits is, of course, illegal. If there is a breach of patient data identified, as long as the provider can demonstrate that care was performed “in good faith” to provide necessary and timely care and with “reasonable precautions” to protect patient data no legal penalty will be imposed.8
Duty of Care
Clinically, other legal concerns may arise. As with in-person care, providers must also comply with the expected ethical standards and practice within the scope of their licensure. Optometry, in particular, is a difficult specialty exam to conduct over telehealth. The capability of performing thorough remote testing exists but most providers do not have access to the technology at their fingertips. Therefore, the doctor must use his or her clinical judgment and limited examination and history to determine if the patient is having an emergency that would require an in-person exam. This opens the door to the potential for malpractice or negligence suits. Neglect by telemedical providers is defined as “deliberate indifference to serious medical need.”9 According to a review of malpractice cases related to telehealth, the most commonly encountered issues were “substandard verification of patient identity, suboptimal diagnosis and treatment, and inadequate medical history taking.”10
There are many examples of lawsuits regarding providers practicing telemedicine with patients located in other states without being aware their licensure or credentials are not valid. This is important for optometrists to consider since O.D. licensure does vary by state and thus may inflict limitations on care or prescriptions.9
Telehealth is a growing model of care delivery that optometrists must become comfortable utilizing. It is important to be aware of the privacy and ethical concerns along with the professional responsibilities that come with providing remote care. With these limitations and legal considerations in mind, we can continue to utilize telehealth procedures as a tool to provide timely and safe care for our patients when appropriate.
- Trends in the use of telehealth during the emergence of the Covid-19 Pandemic - United States, January–March 2020. (2020, October 30). Retrieved from https://www.cdc.gov/mmwr/volumes/69/wr/mm6943a3.htm
- Current state laws & reimbursement policies. Retrieved from https://www.cchpca.org/telehealth-policy/current-state-laws-and-reimbursement-policies?jurisdiction=61&category=All&topic=All
- National policy. Retrieved from https://www.cchpca.org/telehealth-policy/informed-consent
- Fact sheet MEDICARE Telemedicine health care Provider fact sheet. Retrieved from https://www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet
- U.S. Department of Health & Human Services. (2021, January 20). Notification of enforcement discretion for telehealth. Retrieved from https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html
- Getting started with telehealth. Retrieved from https://telehealth.hhs.gov/providers/getting-started/
- Obtaining informed consent. Retrieved from https://telehealth.hhs.gov/providers/preparing-patients-for-telehealth/obtaining-informed-consent/
- U.S. Department of Health and Human Services. FAQs on Telehealth and HIPAA during the COVID-19 nationwide public health emergency. Retrieved from https://www.hhs.gov/sites/default/files/telehealth-faqs-508.pdf
- Is the doctor in? Medical malpractice issues in the age of telemedicine. Retrieved from https://www.natlawreview.com/article/doctor-medical-malpractice-issues-age-telemedicine
- Fogel, A., & Kvedar, J. (2019, April 2). Reported cases of medical malpractice in direct-to-consumer telemedicine. Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6450271/
CovalentCareers is committed to supporting optometrists and optometry students during the Coronavirus pandemic. For more optometry-specific resources and information, visit our Optometry COVID-19 Resource Center.