United States: Risk Management Strategies To Reduce Risk Associated With Telehealth

Last Updated: September 16 2019
Article by Paulette M. Thomas

The use of technology to provide healthcare has existed for decades; however, recent advances in technology and changes in reimbursement have increased the prevalence of telehealth for diagnosing and treating patients. Telehealth is an emerging and promising method of providing healthcare in areas where healthcare may be limited or unavailable. Telehealth provides quality, cost-effective healthcare and can reach individuals in remote or underserved locations. It has also been shown to increase patient satisfaction.

The Health Resources and Services Administration of the U.S. Department of Health & Human Services defines telehealth as "the use of electronic information and telecommunications technologies to support and promote long-distance clinical health care, patient and professional health-related education, public health and health administration, and may include non-clinical services." The Centers for Medicare & Medicaid Services and all 50 states have regulations governing the use of and reimbursement for telehealth services, and commercial payers are increasingly covering these services. Reimbursement policies for telehealth services vary and may limit or restrict the type of facilities and providers who may seek reimbursement, setting geographical limitations on reimbursement for certain medical conditions. Because of the surge in the use of telehealth, healthcare providers need to be aware of the risks associated with the use of this technology and implement mitigation strategies to reduce these risks.

Telemedicine, which is a subset of telehealth, is defined by the Federation of State Medical Boards as "the practice of medicine using electronic communications, information technology, or other means between a licensee in one location and a patient in another location with or without an intervening health care provider." Telemedicine can be delivered via real-time videoconferencing for (1) provider-patient consultations; (2) provider-to-provider consultations; (3) store-and-forward technologies; (4) direct to consumer upon demand; and (5) remote patient monitoring in which electronic devices transmit patient health information to providers.

With nearly all healthcare providers currently using some form of telehealth to care for patients, or planning to implement a telemedicine program, the laws and regulations surrounding the practice of medicine are extended to using telehealth technologies to deliver patient care. Legal issues surrounding telemedicine include:

  • Privacy and security
  • Provider state licensure
  • State scope-of-practice laws
  • Corporate practice of medicine
  • Credentialing of providers at the facility where the patient is located
  • Reimbursement
  • Medicare Conditions of Participation requirements for telehealth
  • The Joint Commission standards for telehealth
  • Establishing the provider-patient relationship with the use of telehealth technologies
  • Patient consent
  • Liability and malpractice insurance across state lines
  • Fraud and abuse
  • Regulatory requirements with the use of mobile apps and mHealth apps

Healthcare providers should develop a detailed telemedicine program that identifies the need for specific services and the available or required technologies and resources to implement such a program. Telehealth services should be incorporated into a provider's overall health information technology structure to support the access to and exchange of health information between healthcare providers. This strategy includes an analysis of the associated risks and implementation of risk mitigation strategies and oversight in order to comply with various laws and regulations. Healthcare providers will also want to evaluate and revise their telehealth programs as new technologies, processes and services are developed and implemented.

Privacy and Security Considerations

Patients expect healthcare providers to protect their health information, and adoption of telemedicine by patients will be dictated, in part, by assurances that their health information will be secure and their privacy maintained. The Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Health Information Technology for Economic and Clinical Health Act and the regulations promulgated apply to covered entities that use and disclose protected health information (PHI) in any medium, including electronic PHI (ePHI). Additionally, state privacy and security laws that protect personal information will also apply to telemedicine. The originating site where the patient is located and the distant site where the healthcare provider is located must coordinate implementation of the telemedicine program to ensure that the confidentiality, integrity and security of PHI are maintained. Privacy and security considerations include:

  • Use of authorized telehealth equipment.
    • What is the vendor providing – equipment, software, connectivity, or a third-party software license with limited support and maintenance? Does the vendor agreement contain representations and warranties that the equipment will function as warranted, and are there guaranteed uptimes and limited downtimes? Does the equipment have sufficient security features to meet HIPAA and state security requirements?
    • Is the vendor a business associate? If so, what are its responsibilities in the event of a breach of PHI? Does the agreement contain indemnification or limitation of liability provisions in the event of a breach? Does the vendor have cyber liability insurance and other insurance coverage, and are the amounts adequate?
  • Conducting a security risk analysis of the telehealth equipment to identify any security vulnerabilities and implementing a risk management plan to mitigate vulnerabilities. Each of the originating-site and distant-site parties should conduct its own security risk analysis.
  • Integration and interoperability of electronic data generated from telehealth services into the electronic health record and health information exchanges. How will the originating site and distant site use and disclose ePHI?
  • Identifying authorized users of the telehealth system and electronic health record and ensuring access controls are in place to restrict access to only authorized users.
  • Patient privacy and security during live videoconference between the patient and the distant provider.
  • Secure transmission of the videoconference between the patient and the distant provider.
  • Monitoring and auditing of access, use and disclosure of PHI with telehealth services, and responsibilities between the parties.
  • Revising privacy and security policies and procedures to include the use of telehealth.
  • Revising the Notice of Privacy Practices to include the use of telehealth for treatment, payment and operations purposes.
  • Responsibility between the parties in the event of a breach of unsecure PHI, and notification requirements.
  • Assessment of additional federal and state privacy laws, and protection of sensitive information such as substance abuse, mental health, STD, HIV and AIDS status.
  • Assessment of the Federal Trade Commission's and the Food and Drug Administration's regulations governing the use of mobile medical apps if mobile apps are being used to communicate with the patient.
  • Record retention laws for electronic recordings, secure storage, maintenance and transmission of ePHI, and responsibilities of the parties.

Provider state licensing requirements, scope of practice, credentialing and liability of providers using telehealth services will be discussed in the next blog post.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions