Legal issues are critical for telehospice programs

Liability and Medicare rules are chief concerns

The legal issues that apply to telehospice chiefly relate to the legal issues that already affect health care, including licensure, Medicare’s Conditions of Participation (COPs), accreditation, and malpractice laws, with some added details, an expert says. For example, because most hospices are certified Medicare providers, the COPs confer a range of responsibilities upon them, including communication with interdisciplinary team members and documentation of critical actions for patients, says William A. Dombi, JD, vice president for law at the National Association for Home Care and Hospice in Washington, DC.

"Are hospices prepared to continue to comply with those rules and regulations in the age of new health technologies?" Dombi says. "A monitoring system may give 24/7 data. What kind of access to that information do team members have?"

For instance, the hospice may need to assign someone to review and digest the data, or at least have someone monitor the telehealth findings for the interdisciplinary team, Dombi explains. "It’s not a new responsibility, but an old responsibility applied in a new context," Dombi says. "How has the hospice adapted to that new context in terms of communication?"

An example of how the COPs should be revisited to make certain they are correctly applied is by having at least one employee review all telehealth data. That procedure should be audited periodically to ensure that the reviewer is doing a comprehensive assessment of the information, Dombi says.

Hospices that have accreditation through the Joint Commission on Accreditation of Healthcare Organizations in Oakbrook Terrace, IL, will have to go through an assessment to ensure that they are complying with the commission’s telehealth standards, Dombi says. "Go through your system with the new telehealth and ask the question, Am I still doing the right thing to comply with either the Conditions of Participation or the standards of accreditation?’" Dombi says. "The old ways may be adequate, but until you analyze them, you’re not sure they are."

Malpractice is the area of greatest legal concern, and there are a number of actions a hospice should take to prevent problems in this area, Dombi says. These steps include the following:

1. Reassess staff competency.

"A very competent nurse may not be a very competent nurse when it comes to utilizing telehealth services," Dombi says. "A competency evaluation of the nurse and staff generally is essential, and you must have well-trained staff using telehealth services." For example, if the telehospice service includes the use of a video camera, some nurses may not know how to visually assess a patient who is seen through one of these devices. There will be a need to check the staff’s telehospice technology competency, Dombi says.

2. Educate patients and families.

"Telehealth is a two-way health care service, and not every patient and family member is able to use the services properly," Dombi says. Just as an agency needs to make certain staff are fully trained in the technology, they will need to assess patients and caregivers for competency in using the equipment, Dombi adds. "It’s difficult teaching patients to use telehealth services rather than teaching them to take oral medications," Dombi says.

3. Have a disaster preparedness plan.

The hospice’s existing disaster preparedness plan may not be adequate for dealing with telehospice patients, Dombi notes. For instance, an electrical problem could be a bigger safety issue for patients who are depending on telehealth monitoring equipment, Dombi says. The hospice should have a plan for managing telehealth patients who are affected by fire, flood, hurricane, or other disasters.

4. Evaluate competency of equipment.

There are liability concerns relating to the competency and operation of equipment, which needs to be calibrated properly, Dombi says. "Hospices will rely on the equipment supplier, but ultimately the responsibility falls on the hospice," Dombi says. "What systems are in place to make sure vendors are properly maintaining equipment, and what kind of system is in place for when the equipment is out of function?"

The main idea is that when using telehealth services, the home health agency is responsible for receiving the equipment’s information, making it a part of the overall care planning for the patient, and making certain the equipment is operating properly and the staff are educated in its use, Dombi says. For instance, if a patient goes into cardiac arrest that was caused by a condition to which the hospice could have responded, then the hospice could be held liable, even if the condition had nothing to do with the terminal illness, Dombi says. "The hospice could have responded to it and failed to do so because they failed to properly monitor data," Dombi explains. "So there is a causal relationship between the injury and the hospice’s lack of fulfillment of its duties, and that’s what creates liability."

Although liability risks are not high, hospice staff need to be aware that when they use new technology, they should have a more modernized view of risks and management of risks, Dombi says.