Many conveniences of modern healthcare have enhanced healthcare delivery, for patient and provider. Telehealth — sometimes called “telemedicine” — allows patients to “see” her physician or other healthcare provider without having to get in a car and drive somewhere. That is great, right? Well, it can be. But for the provider, there are of course regulatory pitfalls and compliance boxes to check in this developing area of health law. “Telehealth visits” can be online using a computer, tablet, or smartphone allowing patients to communicate with providers by phone or using video. But telehealth rules, perhaps more so than other evolving aspects of the health law, seem to continuously evolve and adjust in the aftermath of the Covid pandemic. Lots of gray can make navigating the rules challenging and professionally risky.
Georgia Telehealth Attorneys
Little Health Law exclusively represents providers. With offices in Atlanta and Augusta, Georgia, Little Health Law is an AV-rated multi-jurisdictional health law firm servicing providers throughout Georgia and throughout the United States. We are glad to consult with providers about their telehealth ideas and practices.
An important aspect of “telehealth” is its potential reach across state lines since it removes the need to drive to the doctor. The expansive reach afforded by telehealth can raise issues that arise under federal and state law. For example, there are Federal telemedicine prescribing rules. Under the Federal Ryan Haight Act, prescribing controlled substances generally requires that a practitioner/prescriber conduct at least one in-person medical evaluation of the patient. 21 U.S.C. Sect. 829(e) (“Controlled substances dispensed by means of the Internet”). Specifically, the Ryan Haight Act states:
- No controlled substance that is a prescription drug as determined under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301 et seq., may be delivered, distributed, or dispensed by means of the Internet without a valid prescription.
- As used in this subsection:
- The term “valid prescription” means a prescription that is issued for a legitimate medical purpose in the usual course of professional practice by-
- A practitioner who has conducted at least 1 in-person medical evaluation of the patient; or
- A covering practitioner.
- (i) The term “in-person medical evaluation” means a medical evaluation that is conducted with the patient in the physical presence of the practitioner, without regard to whether portions of the evaluation are conducted by other health professionals. (ii) Nothing in clause (i) shall be construed to imply that 1 in-person medical evaluation demonstrates that a prescription has been issued for a legitimate medical purpose within the usual course or professional practice.
- The term “covering practitioner” means, with respect to a patient, a practitioner who conducts a medical evaluation (other than an in-person medical evaluation) at the request of a practitioner who-
- Has conducted at least 1 in-person medical evaluation of the patient or an evaluation of the patient through the practice of telemedicine, within the previous 24 months; and
- Is temporarily unavailable to conduct the evaluation of the patient.
In addition to Federal law, state law is implicated by every telehealth practice. As of the time of this writing, telehealth in Georgia is governed by the general telemedicine rules and the prescribing rules. The Georgia Telehealth Act, O.C.G.A. 33-24-56.4, defines telemedicine in relevant part as “real-time two-way audio, visual, or other telecommunications or electronic communications . . . .” This does not include, for instance, a patient filling out a questionnaire and a provider reviewing it. It requires real-time two-way communication. The telemedicine rules are different from state to state. If either the provider or patient is in a different state, one must ensure compliance with each such state’s medical and telemedicine rules. In particular, it is crucial for licensure purposes to know when communications constitute practicing medicine under a state’s medical practice act. For this reason, generally speaking, providers are well advised to consult with their health law attorney about what states’ laws or rules may be implicated by specific telehealth practices and how those laws and rules govern compliance.
Georgia-Based Telehealth Lawyers
Our focus is advising and representing medical practices, physicians and closely held healthcare businesses. We often advise providers on telehealth legal matters. In all engagements, we intend to ensure ready access to high quality legal deliverables with exceptional customer service for our healthcare provider customers.
Telehealth Informed Consent
The rise of telehealth as a means of delivery for healthcare services has been extraordinary and will only continue. Developing federal and state medical practice rules will likely have to address many factual nuances and unique models as healthcare providers identify new opportunities to provide greater, more accessible healthcare services via telehealth. A crucial component of compliance will always be obtaining and documenting informed consent.
In our health law practice, we see many types of telehealth-based medical practices. As with any healthcare, informed consent is essential in each instance for protection of both the patient and the provider. The informed consent document should be designed to create a road map for compliance by including various information such as the following:
- An introduction section that describes the intended use of electronic communications to improve healthcare by enabling healthcare providers to provide services to patients in their homes or at other locations besides the medical office and the intention that telehealth services will be provided consistent with the professional degree, scope of practice, and training of the providers.
- An explanation that in addition to meeting face-to-face with medical professionals, telehealth services may include secure and private transfer of the patient’s medical records, x-rays, other images, and data collected from certain physical therapy devices and that, just like “in-person” or “real-time” communications, such information may be used for diagnosis, treatment, follow‐up, education, and other purposes related to care.
- A statement that electronic systems used will incorporate network and software security protocols to protect the confidentiality of patient identification and imaging data and will include measures to safeguard the data and to ensure its integrity against intentional or unintentional corruption.
- An explanation of the intention to provide improved, quicker, and more efficient evaluation and care by using messaging, booking appointments online when available, and possibly being seen sooner, saving you a trip to the medical office.
- A description of steps taken to ensure the privacy and security of personal health information (e.g., using state-of-the-art encryption
and other security safeguards).
- Conspicuous disclosure that, as with any healthcare treatment, there are potential risks associated with telemedicine, including: a) in rare cases, information transmitted may not be sufficient (e.g., poor resolution of images) to allow for appropriate physical therapy decision-making; b) delays in evaluation and treatment due to deficiencies or failures of the equipment; and c) in infrequent instances, problems with equipment or security protocols could fail, causing a breach of the security and privacy of personal information.
It is also good practice to have each patient attest with a signed document that he understands and agrees to certain key elements, including the following:
- That the laws that protect the security, privacy, and confidentiality of medical information apply to telemedicine, and no information obtained in telemedicine that identifies the patient will be disclosed to researchers or other entities without consent.
- That the patient has the right to withhold or withdraw consent to the use of telemedicine during his care at any time without affecting his right to future care or treatment.
- That the patient has the right to inspect all information obtained and recorded during a telemedicine interaction and may receive copies for a reasonable fee.
- That a variety of alternative methods of physical therapy care may be available to the patient and that applicable professionals have explained the alternatives to the patient’s satisfaction.
- That telemedicine may involve electronic communication of his personal physical therapy information to other physical therapy and medical practitioners in different locations, including out-of-state.
- That the patient may expect the anticipated benefits from telemedicine, but no results can be guaranteed or assured.
- That the practice’s HIPAA Notice of Privacy Practices have been provided to the patient and provide additional protection to the security and privacy of medical records.
Connect With Us
Reach out to us today if you have a question. We are happy to discuss your matter or concern. We do not charge a fee for an introductory consultation for you to determine whether our health law firm is a fit for your medical practice, healthcare business or professional needs. To schedule a confidential consultation, email us at info@littlehealthlaw.com. Or call us at our Atlanta office 404.685.1662 or our Augusta office 706.722.7886.