One of the major questions facing physicians during the COVID-19 pandemic is how to practice “social distancing” within our current health care system for all patient care unrelated to the coronavirus. How do we continue to care for patients who need routine care? What do we do with elective surgeries, or more broadly, non-emergent clinic visits? Telehealth will be an important part of this discussion. Below are a few items to consider when having these discussions.

Telemedicine vs Telehealth – who sets the rules

Telemedicine generally refers to the use of technology to undertake an activity constituting the practice of medicine when the patient is not in the same physical location as the physician. The specific definition of telemedicine varies by state and is not necessarily the same thing as telehealth. For example. The U.S. Department of health and Human Services Centers for Medicare and Medicaid Services (CMS) defines telemedicine to include two-way, real time interactive communication between the physician and the remote patient, but does not include communication via telephone, email, or fax. Some states have adopted this definition, however, others like New York define telehealth separately to include communications by telephone.

Patient Location – or Doctor Location

If you are engaging in telemedicine, you need to ensure you have the appropriate state license. The general rule is that the practice of medicine occurs where the patient is located at the time the telemedicine technologies are used.

Guidelines for Providing Care

1. Physician-Patient Relationship
   1. Similar to conventional medicine, Physicians must still establish the physician-patient relationship. You should not render medical services using telemedicine without:
      • i. Fully verifying and authenticating the location of and to the extent possible, identifying the patient
      • ii. Disclosing and validating the physician’s identity and applicable credentials
      • iii. Obtaining appropriated consents from patients after disclosures regarding the delivery methods and treatment models and limitations (including the limitations of telemedicine)
2. Documenting the Informed Consent
   1. Appropriate informed consent should include at, minimum, the following terms:
      • i. Identification of the patient, the physician and the physician’s credentials.
   2. Type of transmissions permitted using telemedicine technologies (prescription refills, patient education, etc.)
   3. The patient agrees that the physician determines whether or not the condition being diagnosed or treated is appropriate for a telemedicine encounter.
   4. Details on security measures taken with the use of telemedicine technologies
   5. Hold harmless clause for information lost due to a technical failure
3. Patient Care
   1. Physicians should follow the same evaluation and treatment standards required for traditional in-person treatment. Treatment should be based on evaluation of the patient, not merely on an online questionnaire.
4. Privacy and Security
   1. Physicians and health systems must ensure that the same level of privacy that would be required for an in-person visit is in place and is compliant with HIPAA and state law.

Risks - Getting Sued

At this time, there is not enough guidance on the appropriate standard of care for video and other remote encounters. There is also a question on whether a Physician could be held liable for not utilizing available technologies if they are readily available. It is important for Physicians to review their malpractice insurance coverage to ensure that such services are covered.

What to do now?

Prepare. State law and state medical boards will dictate the rules for each individual situation. Educate yourself and your practice on how you could still deliver care during this pandemic. Know that as patients, we appreciate any care we can receive – even if it’s not face-to-face.