Telemedicine brings more risk with more use

Use likely to increase in coming years

Telemedicine has been the new frontier of caregiving for years, but it finally is becoming a reality at many healthcare facilities. That change means that the liability risks discussed in theory up to this point are becoming real, and risk managers must act quickly to address them.

Whereas the use of telemedicine in the early years was mainly the purview of leading-edge physicians who either devised their own long-distance connections or worked with academic researchers, hospitals are now being approached by companies offering to provide telemedicine capabilities. That change magnifies some of the potential liability risk, says Mark Kadzielski, JD, an attorney with the law firm of Pepper Hamilton in Los Angeles.

"A risk manager should be very, very aware of the issues when someone at your facility says they are going to contract for telemedicine services," he says. "There will need to be a written agreement for telemedicine services, which needs to be looked at carefully because of the myriad legal issues involved."

Telemedicine is defined by the Centers for Medicare & Medicaid Services (CMS) as "the provision of clinical services to patients by practitioners from a distance via electronic communications," and by the American Telemedicine Association (ATA) as "the delivery of any healthcare service or transmission of wellness information using telecommunications technology."

The technology will be employed more in coming years as a way to compensate for the increased patient load and the lack of physicians, Kadzielski predicts. "Given the expansion of access under Obamacare, telemedicine is a natural fit so that people in remote areas and busy urban areas without enough doctors can be seen," he says. "It can be a wonderful component of care if used properly."

Unaddressed issues

There are many significant unaddressed legal issues that risk managers must face to ensure that their telemedicine services are compliant with federal and state requirements. One of the first concerns is reimbursement. Medicare reimbursement for telemedicine services is limited, but CMS has indicated that it might expand the payment possibilities. Medicaid reimbursement varies from state to state, though at least some type of reimbursement is offered in the majority of states, Kadzielski explains.

Due to the varied reimbursement climate, hospitals, healthcare organizations, and healthcare systems should do the following:

• Be aware of the federal and state reimbursement laws and restrictions that might affect their billing practices.
• Know what telemedicine services will and will not be reimbursed.
• Know how to bill for certain telemedicine services.
• Only submit compliant claims to avoid liability for fraud and abuse and false claims.

"When you’re offered a contract and people say don’t worry because you’ll split the money, that raises all sorts of concerns about fraud and abuse," Kadzielski says. "And of course, if what you’re splitting turns out to be zero, that’s going to cause a contractual dispute faster than you can imagine."

There is very little case law regarding telemedicine, and most of what exists involves criminal charges related to prescribing medicine across state lines, says Paul Hildebrand, MD, associate director of the patient safety organization TeamHealth in Knoxville, TN, and regional director of quality with the San Franciscan Health System in Tacoma, WA. Though he agrees there are many potential risks, he sees the possibility of telemedicine actually reducing liability in some ways.

Prepare now, experts recommend

"The overall risk could be diminished by telemedicine because you’re able to provide a service that you might not otherwise have been able to provide," Hildebrand says. "If the patient can get the care they need, regardless of where they are located, that can be a positive aspect in terms of patient care and liability."

Hildebrand recalls one physician who was making use of email and electronic health records to communicate with patients, to the extent that his malpractice insurer decided to audit him, because staff there feared that the remote consultations were jeopardizing patient care and creating liability risks. After looking at his email use, the malpractice insurer reduced his premium.

"They found that his use of telemedicine improved his relationship with patients, rather than leaving them to grow angry over long waits for an appointment," he says.

Hildebrand and Kadzielski urge risk managers to address the risk management issues related to telemedicine immediately, even if the technology is not yet employed widely. If it is not yet a significant part of your organization’s caregiving, it soon will be, they say.

"You have to worry about the risk now. You can’t kick the can down the road," Kadzielski says. "Given the exponential expansion of telemedicine services, the time to be concerned about the risk is now, not tomorrow."