TELEHEALTH RISK MANAGEMENT AND INSURANCE CONSIDERATIONS

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1 TELEHEALTH RISK MANAGEMENT AND INSURANCE CONSIDERATIONS By Katherie Laws Debes First Vice Presidet, Cliet Advocacy

2 TELEHEALTH RISK MANAGEMENT AND INSURANCE CONSIDERATIONS As providers, payers, ad patiets seek the elusive triity of healthcare quality, access, ad cost, they are icreasigly turig to telehealth programs. Global professioal services compay Towers Watso estimates that a potetial maximum savigs of $6 billio per year is available through aggressive use of telehealth services. 1 Although expected growth rate statistics for telehealth vary, the models cosistetly predict substatial growth i the umber of patiet visits ad related reveue growth. Skip Fleshma with Asset Maagemet Vetures predicts that telemedicie may just be the biggest tred i digital health i 2015 ad otes that telemedicie is movig like lightig. 2 Providers lookig to embrace populatio health look to telehealth to ehace maagemet of patiets with chroic health, to icrease access to behavioral healthcare, ad to provide a cost-effective poit of access for services. This rapid expasio of telehealth warrats a examiatio of potetial risks ad isurace issues that should be cosidered i implemetig a program. A word about the defiitios of telehealth ad telemedicie: the terms are used iterchageably by some ad defied separately by others. The America Telemedicie Associatio defies telemedicie as the use of medical iformatio exchaged from oe site to aother via electroic commuicatios to improve a patiet s cliical health status. 3 The Associatio uses the terms telemedicie ad telehealth iterchageably but ackowledges that some users prefer telehealth to describe a broader rage of services beyod cliical iteractios. I a give cliical settig, providers should be familiar with the differig defiitios of telemedicie from their state statutes, their accreditig bodies, ad CMS. CMS defies iteractive telecommuicatios system as multimedia commuicatios equipmet that icludes, at a miimum, audio ad video equipmet permittig two-way, real-time iteractive commuicatio betwee the patiet ad distat site physicia or practitioer. Telephoes, facsimile machies, ad electroic mail systems do ot meet the defiitio of a iteractive telecommuicatios system. 4 For purposes of this paper, telemedicie ad telehealth are used iterchageably. $6 BILLION PER YEAR potetial maximum savigs available through aggressive use of telehealth services 1 curret-telemedicie-techology-could-mea-big-savigs 2 Fleshma, Skip, Why Telemedicie s Time has Fially Come, Forbes Pharma & Healthcare, Ja. 1, C.F.R (a)(3) 2

3 Telemedicie may just be the biggest tred i digital health i Additioal terms that are critical to a discussio of telehealth relate to the two physical locatios that are part of the virtual coectio. The origiatig site is the locatio of the patiet receivig the telehealth service, ad the distat site is the locatio of the healthcare provider that is providig the telehealth service. Provider Licesig ad Credetialig The practice of medicie ad other healthcare professios is regulated by each state through its state medical board ad acillary agecies. Without a sigle regulatory authority, physicias ad other healthcare providers must have the proper state liceses to provide telehealth services to their patiets. The Federatio of State Medical Boards developed the Iterstate Medical Licesure Compact i a effort to streamlie the multistate licesig issues associated with telemedicie.± The compact allows expedited licesig of a compact state physicia that meets requiremets sets forth i the statute. The physicia is still required to be licesed i the state where the patiet is located, but the process of obtaiig the additioal licese is much less cumbersome. To date, the compact has bee adopted by Alabama, Idaho, Motaa, Miesota, Nevada, South Dakota, Utah, West Virgiia, ad Wyomig. 5 The compact has bee criticized by advocates of a sigle atioal medical licese as perpetuatig the authority of the various state medical boards. May states curretly offer some kid of medical licese reciprocity, but the state statutes ad regulatios of each state must be carefully reviewed to idetify the requiremets ad scope of that reciprocity. Other states offer a special telemedicie licese. For example, the Orego Medical Board offers a optio where a out-of- 5 Iterstate medical licesure compact formed, Health Day, Jue 4,

4 ...Providers must be sure that their telemedicie practice meets state board requiremets. state physicia may be licesed for the practice of medicie to a patiet i Orego whe the physicia is located i aother state. However, that licese is restricted to practicig across state lies oly ad does ot authorize the physicia to practice while i the State of Orego. 6 I additio to uderstadig the various licesig requiremets, providers must be sure that their telemedicie practice meets other medical board requiremets, such as whe a face-to-face assessmet is required ad whether such a assessmet ca be performed via telemedicie. Telehealth providers must be properly credetialed i advace of providig telehealth services. I 2011, CMS implemeted a ew credetialig ad privilegig process for physicias providig telemedicie services. 7 The rule chage ackowledged that the process of requirig the origiatig site to credetial ad privilege providers at a remote site preseted a barrier to the effective use of telemedicie. I a effort to provide flexibility to rural ad small hospitals usig telehealth to ehace delivery of care, the rule revised the coditios of participatio for hospitals ad critical access hospitals by allowig the goverig body of the origiatig hospital to rely o the credetialig performed by the distace hospital or telemedicie etity if certai coditios are met. Origiatig hospitals relyig o the credetialig of the distat hospital should carefully review these credetialig requiremets as part of establishig a telemedicie program. Both the origiatig site ad the distat site eed isurace coverage for patiet claims arisig from allegatios of egliget credetialig. Such coverage is typically icluded as part of a professioal liability policy, but policies should be carefully reviewed to cofirm coverage. A secod potetial exposure is a claim by a physicia 6 ORS Fed. Reg

5 TELEHEALTH RISK MANAGEMENT AND INSURANCE CONSIDERATIONS arisig from a adverse credetialig or peer review decisio. Coverage for these actios is typically part of the directors ad officers isurace policy. Eve whe the origiatig site has essetially adopted or relied upo the credetialig performed by the distat site, that site may still be sued i a credetialig-related matter ad will wat to be sure they have appropriate coverage. The cotract goverig the parties may specify the amouts of isurace coverage each party is required to carry ad may also require that the etity be amed as a additioal isured o the other party s isurace. Verify ad documet that each telemedicie provider is properly licesed i all applicable states. Determie legal requiremets for credetialig ad regularly review process to determie compliace. Cofirm proper isurace coverage at both sites for credetialig claims arisig from the telemedicie program. Billig ad Regulatory To date, private payers have bee leadig the way i reimbursig providers of telehealth services. UitedHealth Group recetly aouced a sweepig icrease i telehealth optios, icludig olie physicia access 24 hours a day. 8 The program is expected to provide video-based office visits to patiets i 47 states ad the District of Columbia. 9 DEFINITION Origiatig Site: The locatio of the patiet receivig the telehealth service. Distat Site: The locatio of the healthcare provider that is providig the telehealth service. CMS has bee criticized by some for beig too slow to implemet reimbursemet guidelies for telemedicie. Those agaist the expasio of telehealth for Medicare argue that givig seiors olie access to doctors will simply ecourage seiors to use more services ad will ot decrease costs. 10 Telehealth reimbursemet by Medicare origially covered oly beeficiaries i rural areas, ad i order to qualify, the beeficiary had to be see at a authorized origiatig site. Authorized sites iclude offices of physicias or practitioers, hospitals, rural health cliics, skilled ursig facilities, or commuity metal health ceters. 11 I March, CMS aouced that it would exted reimbursemet for telehealth services further by waivig the rural ad health facility requiremets for beeficiaries uder a Next Geeratio Accoutable Care Orgaizatio. 12 Providers participatig i ad billig CMS for telehealth programs as either origiatig or distat sites are subject to may of the same regulatory statutes as traditioal cliical settigs. Legal review of ay potetial regulatory exposures is advised. The OIG has provided some guidace i the form of advisory opiios regardig specific telemedicie affiliatio agreemets VirtualCarePhysicias.aspx 9 Id. 10 medicare-slow-to-adopt-telemedicie-due-to-cost/fcdx7d/ 11 MLNProducts/dowloads/TelehealthSrvcsfctsht.pdf 12 MLNProducts/dowloads/TelehealthSrvcsfctsht.pdf 13 See geerally https://oig.hhs.gov/compliace/advisory-opiios/ 5

6 May isurace carriers ow provide regulatory isurace coverage specifically desiged to respod to claims arisig out of billig issues related to regulatory violatios. Such coverage does ot typically carry a exclusio for treatmet provided via telemedicie ad, as such, should be cosidered i coectio with a telehealth program. Seek legal advice regardig program compliace with Stark, Ati-kickback, ad other state ad federal regulatios. Regularly audit the billig process to esure compliace for billig of telehealth care. Review available isurace optios for regulatory/billig specific coverage. Privacy ad Security Protectig patiet health iformatio i the telemedicie settig presets may of the same challeges as a traditioal cliical settig, alog with uique challeges. Telemedicie icludes the use of electroic voice ad video commuicatios with the patiet, which presets additioal opportuities for a breach. I additio, cosideratio must be give to whether electroic voice ad video data is required to be maitaied as part of the medical record. Whe such data is maitaied, HIPAA ad state equivalet rules must be followed. From a risk maagemet perspective, autheticatio protocols should be used to limit access to telehealth records to approved persoel. Ecryptio ad other security measures should be fully tested before operatig a ew telehealth program, ad policies ad procedures goverig the use of data o portable devices should be i place ad regularly audited for compliace. ENCRYPTION ad other security measures should be fully tested before operatig a ew telehealth program. The provisio of telehealth services typically ivolves multiple parties, icludig techology vedors. Telehealth providers should cosider idemificatio clauses, as well as requirig ay party to the trasactio with the potetial to cause a breach to carry isurace with limits sufficiet to address a breach. Telehealth ecessarily requires that the equipmet used i the iteractio fuctio appropriately, or care caot be provided. Although a traditioal cliical settig may respod to a computer-related outage by usig a paper medical record as a short-term fix, telehealth service may be completely iterrupted. Before implemetig a telehealth program, complete cotigecy plaig for both short-term ad log-term outages of service. I additio, before a program goes live, busiess iterruptio risk ad isurace coverage for same should be cosidered. Desig a program usig state-of-the-art ecryptio ad autheticatio procedures. Draft cotract laguage to iclude idemificatio for data breaches caused by other parties. Isure the program uder a privacy ad security liability isurace policy. Professioal Liability I most states, professioal liability is based o the questio of whether a provider violated the stadard of care by doig, or ot doig, what a similarly situated healthcare provider would have doe uder the same or similar circumstaces. 6

7 TELEHEALTH RISK MANAGEMENT AND INSURANCE CONSIDERATIONS As telemedicie evolves, this legal stadard will be examied i the cotext of remote delivery of healthcare. Other issues that may arise iclude formatio of the patiet physicia relatioship, obtaiig iformed coset, ad recogizig the eed for referral to a elevated level of care. Cosider potetial choice of law issues where the physicia ad patiet are located i separate states. For example, a physicia based i a state with tort reform treatig a patiet i a state without tort reform may likely be subject to the laws of the state where the patiet is located. I the rush to look at risk maagemet issues uique to telemedicie, it is importat to ot abado traditioal risk maagemet priciples. Educatio ad traiig aroud documetatio of telehealth visits ad commuicatio betwee the team providers remais very importat. Risk maagemet of telehealth should iclude idetificatio ad aalysis of adverse evets i a system similar to that used i the traditioal cliical settig. The structure of the telemedicie settig requires establishig processes to accomplish tasks such as orderig of labs or other tests, reportig results to the provider ad the to the patiet, makig specialist referrals, ad prescribig medicatio. As with ay ew process, provider educatio, process testig, ad real-time error aalysis ad correctio will be essetial. At preset, professioal liability isurace policies do ot typically distiguish betwee coverage provided for i-perso care versus telehealth care. However, as telemedicie develops, it will be importat to moitor policies to be sure that there are o restrictios o coverage for telemedicie activities. Policies may restrict coverage oly to care provided at a scheduled locatio or withi the Uited States. Certai states require providers to carry miimum limits of isurace. Providers or those cotractig with telemedicie providers should carefully review the professioal liability policies to determie that they apply the proper scope of coverage. Telehealth programs ofte iclude a icreased use of advaced practice cliicias. This raises the questio of whether the limits of isurace for these idividuals should be separate from the etity limit of isurace or i additio to those limits. Statutory requiremets, the experiece of the jurisdictio, ad idividual exposure data should all be assessed i determiig limits of coverage. Itegrate traditioal risk maagemet cocepts ito the telehealth program. Research choice of law issues to uderstad the potetial scope of risk i advace of implemetig a program. Structure professioal liability coverage to fully cover the telemedicie program. CONCLUSION Telemedicie presets great opportuities to ehace the delivery of healthcare, ad the success of these programs will deped o a disciplied approach to their plaig ad implemetatio. Part of that plaig should iclude a review of existig isurace coverage ad steps to fill i potetial gaps i coverage that may be created by a telehealth model. 7

8 ALLIANT INSURANCE SERVICES: THE PARTNER YOU DESERVE. With a history datig back to 1925, Alliat Isurace Services is oe of the atio s leadig distributors of diversified isurace products ad services. Operatig through a atioal etwork of offices, Alliat provides property ad casualty, workers compesatio, employee beefits, surety, ad fiacial products ad services to more tha 26,000 cliets atiowide. CONTACT K. Todd Hagemeier Executive Vice Presidet ad Maagig Director Freddie Nutt Executive Vice Presidet ad Maagig Director Philip E. Reischma Executive Vice Presidet ad Maagig Director THE AUTHOR Katherie Laws Debes First Vice Presidet, Cliet Advocacy CA Licese No. 0C Alliat Isurace Services, Ic. All rights reserved. [ ] This material is provided for your geeral iformatio oly as it relates to your isurace program. The iformatio is ot, ad is ot iteded to be, specific legal advice. This material is ot provided i the cotext of a attorey-cliet relatioship. Seek specific legal advice from a attorey i your jurisdictio as appropriate.

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