Apr 17 2020

Telehealth & Telemedicine Post COVID-19: A New York Perspective

The novel coronavirus did not give birth to telehealth and telemedicine, but its wide-ranging impact has generated an exponential increase in the use of this technology. Under these circumstances, healthcare practitioners should familiarize and/or reacquaint themselves with what they need to know when practicing in this environment.

What is “Telehealth”?

In New York, “telehealth” means “the use of electronic information and communication technologies by telehealth providers to deliver health care services, which shall include the assessment, diagnosis, consultation, treatment, education, care management and/or self-management of a patient. Telehealth shall not include delivery of health care services by means of audio-only telephone communication, facsimile machines, or electronic messaging alone, though use of these technologies is not precluded if used in conjunction with telemedicine, store and forward technology, or remote patient monitoring. For purposes of this section, telehealth shall be limited to telemedicine, store and forward technology, and remote patient monitoring. PHL § 2999-CC (4).

What is Telemedicine?

In New York, “telemedicine” means the use of synchronous, two-way electronic audio visual communications to deliver clinical health care services, which shall include the assessment, diagnosis, and treatment of a patient, while such patient is at the originating site and a telehealth provider is at a distant site. PHL § 2999-CC (5).

Who Can Practice in This Manner?

Most healthcare providers can practice telehealth and telemedicine in New York. This includes physicians, physician assistants, dentists, NPs, RPNs, podiatrists, optometrists, psychologists, social workers, speech language pathologists, audiologists, midwives, physical and occupational therapists, diabetes educators, asthma educators, genetic counsellors, hospitals, home care services agencies, hospice, alcoholism and substance abuse counsellors. PHL § 2999-CC (2) (a)-(t).

Will My Insurer Cover Me for Practicing Telehealth and Telemedicine?

According to the AMA, there are a number of liability risks associated with practicing telehealth and telemedicine. Apart from garden-variety claims of malpractice, there is exposure concerning privacy, reimbursement, deceptive trade practices, wrongful data collections, licensure and credentialing. You need to make sure that your insurer will cover such claims, if and when they arise. New York prohibits insurers from excluding coverage for a service that is otherwise covered, simply because the service is delivered via telehealth. NY Ins. Law § 3217-h, § 4306-g. You still need to comply with state licensing and credentialing requirements, however. If the patient is outside New York, you need to be licensed in that state. You also need to practice within your designated area of expertise. Failure to comply may jeopardize your insurance coverage.

Under What Circumstances Can I Begin Practicing Telehealth and Telemedicine?

The AMA says that, before a telehealth/telemedicine consultation can occur, a doctor-patient relationship must be established. This can be done through a face-to-face examination or via a consultation with another physician who already has a relationship with the patient.

How Can I Limit My Exposure to Privacy-Related Claims?

Practicing telehealth and telemedicine does not suspend one’s obligation to fully comply with HIPAA. Providers must make sure that they are in a location where no one can overhear virtual visits. They must use technology that provides encrypted data transmission and secure connections. Consumer applications such as Zoom and FaceTime do not offer those features. Proper applications allow providers to ensure privacy while at the same time incorporating appropriate consent forms, patient location and documentation of treatment provided.

In Summary

Telehealth and telemedicine are truly wonderful technologies with which to treat patients, especially during these trying times. Their increased utilization at this moment will surely continue after the dust has settled.

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