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Telehealth Consent Mandates Pose Litigation, Payment Worries

June 15, 2020, 9:35 AM

Old fashioned paper, faxes, and electronic forms are getting in the way of some virtual checkups with patients, threatening payments and legal backstops for health providers.

The District of Columbia and 38 states, including California and Maryland, require patients to give their written or verbal consent before doctors can conduct appointments online.

Telehealth-specific informed consent describes the benefits and risks of virtual visits, online security measures, and the patient or insurer’s financial responsibility. Physicians may have to secure an electronic or paper form from their patients before they can virtually communicate.

A written document could be hard for providers to get, since the goal now is to keep patients from showing up at hospitals and doctors’ offices and potentially exposing themselves and others to the coronavirus. Typically, the informed consent is included in the paperwork a patient has to sign when in the office. But since Covid-19, patients have had to resort to e-mail or fax their agreements.

In more than 20 states—including Wisconsin, Alabama, and Colorado—there could be reimbursement problems under Medicaid if physicians don’t satisfy each stage of the informed consent requirement for telehealth services.

In Maryland, for example, doctors seeking Medicaid payments for treating low-income patients must get their consent before engaging in a virtual visit and document the exchange. If the patient is unable to provide consent, the medical record must contain in writing an explanation as to why the participant was unable to consent to the telehealth services.

Litigation Worries

The need for special informed consent for telehealth visits was the subject of debate before the coronavirus pandemic. Oklahoma enacted a law in 2016 repealing its telehealth consent requirement as state health associations said the mandate was redundant.

Doctors and lawyers continue to mull over the pros and cons.

If states eliminate the informed consent requirement altogether, however, doctors could see an increase in litigation, especially around medical malpractice and contract disputes, according to Lisa Mazur, a partner and co-chair of Digital Health Practice at McDermott Will & Emery in Chicago.

“Because the informed consent includes language about how the patient’s information will be used and lists the liability or risk exposure for the health-care provider, we could see an increase in litigation without it,” Mazur said.

“If patients are injured and file a lawsuit or submit a challenge, the providers can’t point to the informed consent form, which in that case, would be their safety net,” she said.

Permission to Pay

Telehealth consent also spells out what services are billable for the patient’s insurance.

“It’s important to give patients full disclosure of what services are provided and what insurers will get in the bill or if they will get the bill,” Joseph Kvedar, professor of dermatology at Harvard Medical School and president of the American Telemedicine Association, said.

Without the written or verbal informed consent form, patients may be able to claim that they shouldn’t be charged for certain services.

“If you don’t have an informed consent form that spells out financial responsibility, there could be a contractual dispute that could open up the door to whether or not the telehealth company had the authority or permission to charge the patient or their insurance directly,” Mazur said.

Doctors and telehealth companies’ payments are at risk if “there isn’t written acknowledgment or agreement of the patient’s ascent to certain things, one of which is financial responsibility or being charged for things, especially if their health plan doesn’t pay for certain services,” she said.

Contractual Hurdles

After the coronavirus public health emergency announcement, Alabama, Delaware, Georgia, and Maine allowed verbal consent for telemedicine, rather than having the patient sign a written consent form.

But, some states, such as Mississippi, require a written consent to fulfill the Medicaid reimbursement requirement.

In Nebraska, several telehealth services must have a written or emailed signatures of patients and inform them whether the telehealth consultation will be recorded.

Developing Uniformity

Creating a uniform consent standard in all states would help streamline the red tape, doctors say.

“It would be great to have one consent for electronic care and have everyone sign on,” Kvedar said. “We could at least have physicians collect the informed consent per carrier once a year instead of every single visit.”

Doctors who didn’t have solid telehealth protocols prior to the pandemic, including informed consent, have struggled to keep up with what their states require now, according to Lani Dornfeld, member in the health-care practice at Brach Eichler LLC in New Jersey and Florida.

“From the information I’ve gotten from doctors, the whole regulatory scheme made it hard for them to incorporate and implement the administrative checklist during this critical time,” Dornfeld said.

“Patients could be suffering during the pandemic, and even after, if the processes aren’t at least streamlined,” she said.

To contact the reporter on this story: Ayanna Alexander in Washington at aalexander@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Alexis Kramer at akramer@bloomberglaw.com

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