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©SVMIC 2020

Telemedicine in a COVID world

J u l i e H . L o o m i s , J D , R N

M i c h a e l C a s h , M H S A , F A C M P E

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ApplicationMichael Cash, MHSA, FACMPE

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Telehealth is delivering healthcare

services to facilitate the assessment,

diagnosis, consultation, treatment,

education, and self management of a

patients healthcare

Telemedicine is real time two-way

audio video communications and

includes the application of video

conferencing and store-and-forward.

Telemedicine vs. Telehealth

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Telemedicine Technology & Application

Synchronous• Real time• Two way communication

Asynchronous• Store-and-forward• Pre-recorded

Remote Monitoring• Patient sensor• Site machine

Mobile Health• Healthcare apps on phone• Patient wearables

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65%

63%

49%

42% Patients have utilized telehealth

Patients who like telehealth prefer convenience

Patients who like telehealth don’t want to be exposed to other sick patients

Patients who plan to use telehealth post COVID-19 want provider of choice

https://blog.updox.com/company/news-press-releases/updox-

telehealth-patient-survey

Telemedicine Utilization

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History Prior to Emergency Period (3/1/2020)

Qualified site, rural area restriction

Many had qualified site restriction

Agreements with corporate telemedicine

vendors

Agreements with corporate telemedicine

vendors

Medicare

Commercial

Payers

Commercial

Payers

Self-Insured

A few implemented self-pay telemedicine

servicePrivate Practice

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Medicare

End of emergency period 7/25

United Health

Extended through 9/30

Cigna

Extended at least through 7/31

Aetna

Extended through 9/30

Humana

Extended through 12/31

State Licensure

Temporary waiver for

emergency period

DEA

• Waived in person

examination for controlled

substances for emergency

period

• Temporally waives state

lines

Malpractice

Many carriers provide

coverage across state lines

for emergency period

Current State of Telemedicine

HIPAA

Exercise enforcement

discretion in applications

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Interstate Medical Licensure Compact

https://imlcc.org/

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State and Federal law considerations

Must have a DEA in each state

Special Registration for Telemedicine Act of 2018

• DEA required to create special registration by 10/24/19

Haight Act amended Section 309 of the Controlled

Substances Act (21 U.S.C. §829)

• Requires one in-person evaluation for prescribing controlled substances

Controlled Substances

DEA flexibility to prescribe controlled substances

for the emergency period

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Service Description HCPCS/CPT Relationship

Interactive Audio/Visual (Audio Only)

https://www.cms.gov/Medicare/Medicare-

General-Information/Telehealth/Te

lehealth-Codes

Telehealth Visits

Virtual Check-in

E-Visit

Phone Calls

Summary of Telemedicine Services

Brief 5-10 Minutes

Communication

between patient and

provider via portal

Audio Only

G2012

G2010

99421 G2061

99422 G2062

99423 G2063

99441 98966

99442 98967

99443 98968

New/Established

New/Established

New/Established

New/Established

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Medicare Non-Facility• 11 Place of service

• 95 Modifier

• Higher reimbursement

Medicare Facility• 02 Place of service

• 95 Modifier

• Lower reimbursement

Medicare Evisit/Virtual Check-in• 11 Place of service

• No modifier

• Phone calls are now considered telemedicine use 11 POS and 95 modifier

Commercial• 02 or 11 Place of service

• May require 95 modifier

• Check with payers

• Check Medicare advantage plans

Place of Service & Modifier

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Question raised about doing examinations where

physician cannot “lay hands” on the patient

Consider

• Established patient office visit codes require 2 out

of 3 key components: History, Examination,

Medical Decision‐Making

• Some examination can be performed through

observation or conversation; for example: general

appearance, sclera anicteric injected, hearing

intact, skin tone, respiratory effort, gait and station,

mental status

Be sure to document the diagnosis treated and any

coexisting conditions that affect care.

Office Visit Coding

Kim Huey - Billing for Physician Services During a Public Health Emergency

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Office Visit Coding

Kim Huey - Billing for Physician Services During a Public Health Emergency

Patient is concerned that her blood sugar is running higher than usual. She

contacts her physician who responds by Skype, questions her about any

changes in diet, exercise, etc. and advises her on changes to her

medication.

• Expanded Problem‐Focused History (Severity, Modifying Factors plus a

limited Review of Systems)

• Problem‐Focused Examination (General Appearance)

• Low Complexity Medical Decision‐Making (1 Established Problem –

Worsening, Medication Management)

• 99213

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Pre Intra Post TotalCode

99201

99202

99203

99204

99205

99211

99212

99213

99214

99215

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2

4

5

7

0

2

3

5

5

10

15

20

30

45

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35

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5

5

10

15

2

4

5

10

15

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22

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67

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16

23

40

55

• Number of diagnoses and/or

management options

• Amount and/or complexity of

data to be reviewed and

analyzed

• Risk of significant

complications, morbidity,

and/or mortality

• Straightforward, low,

moderate, or high

Medical Decision Making (MDM) Total Time

Medicare Telemedicine Office/Outpatient E/M Level Selection Options

https://www.cms.gov/files/document/covid-final-ifc.pdf

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Future of Telemedicine?

COVID-19

Influenza

Vaccine

Payer Flexibility

State Regulations

Many states continue to see a rise in cases

Most states laws allowed patients to be treated at home before COVID-19 and infrastructure is in place

Payers are continuing to provide coverage flexibility

Problem will be compounded with the flu season approaching

Not sure when we will have a vaccine to mitigate spread of COVID-19

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1Identifying the needWhat is the problem? 2 3 4

5678

11109 12

START

END

Forming the teamWho needs to be involved and when?

Defining successWhat are we trying to achieve?

Evaluating the vendorWhat is the right technology?

Making the caseHow do we get political and financial buy-in?

ContractingWhat is our expected timing, budget and plan with vendor?

Designing WorkflowWhat will need to change to implement technology?

Preparing the care teamDoes everyone know what they need to do to make this successful?

Partnering with the patientWhat does the patient need?

ImplementingHow does it work in practice?

Evaluating SuccessDid it work?

ScalingWhat's next?

Implementation Timeline

https://www.ama-assn.org/system/files/2020-04/ama-telehealth-playbook.pdf

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Broadband

Lighting

Peds Patients

Technology

Access Limitations

Insufficient broadband delays transmission and difficulty understanding

Poor lighting makes it difficult to visualize the patient

May be difficult to corral during the visit

Training patients how to use technology

Patients may not have smartphone or internet

Telemedicine Challenges

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Liability ConsiderationsJulie Loomis, JD, RN

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Communication (Informed Consent)

Assessment of appropriateness for telemedicine

Treatment & Scope of practice

Documentation

Follow-up Instructions

Maintaining Medical Records

Technical Considerations

Telemedicine Liability: The Usual Suspects

Telemedicine offers physicians an alternate means for the delivery of care, as

long as it meets the standard of care.

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Duty

Breach

Proximate Cause

Owes a duty of reasonable care

Violated duty

Failure to carry out duty caused

harm

Elements of Negligence

Causation

Damages

Harm is within scope of liability

Recognized harm

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Elements of Negligence

In a health care liability action, the claimant shall have the burden of proving

by evidence…:

(1) The recognized standard of acceptable professional practice in the

profession and the specialty thereof, if any, that the defendant practices in

the community in which the defendant practices or in a similar community at

the time the alleged injury or wrongful action occurred;

(2) That the defendant acted with less than or failed to act with ordinary and

reasonable care in accordance with such standard; and

(3) As a proximate result of the defendant’s negligent act or omission, the

plaintiff suffered injuries which would not otherwise have occurred.

T. C. A. § 29-26-115

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A physician-patient relationship can be established by way of

telemedicine regardless of whether there's been a prior in-person

encounter between the physician and the patient.

The Physician-Patient Relationship

The physician-patient relationship is generally created when you

have mutual consent between the physician and the patient and

that communication can be expressed or implied.

Caution when using FaceTime or other smartphone app

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01Outline and

communicate typical

telemedicine services

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Communicate new

workflows

• In person vs. telemedicine visits

03Telemedicine platform

• List supported devices and broadband Wi-Fi needs

• Provide instruction on app, IOS smartphone usage

04Video & patient portal

• Enroll patients early if video requires portal access

05Obtain consent

• Written if practical or (if state law requirement)

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Verify

telemedicine

payer coverage

07Labs & imaging

• Inform patients about possibility of non-remote test

08In-office visit

• Inform patients that telemedicine may not be appropriate for some visits

Managing Expectations to Mitigate Liability

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Guidelines

• Must obtain the patient's consent for treatment

• Develop a specific telemedicine informed consent form for the practice

• Virtual telemedicine platforms have consent capability

• Verbal consent may be sufficient under the circumstances

• Consider creating macros to ensure documentation of patient consent, discussion of confidentiality barriers, and documentation of time spent in the visit.

Consent

Consent

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• Physician must disclose the name, current and primary practice location,

medical degree and recognized specialty area if there is one.

• Ask the patient to disclose his/her current location.

• If treating new patients via telemedicine, then the consent should also include a

general consent for treatment.

• Physician should disclose that a telemedicine encounter has benefits of

improved access to medical care by allowing you to remain at your home to

access care. There are some unique risks to receiving care via telemedicine

such as: I may not be able to completely assess your condition given the

diagnostic limitations, namely the inability to touch or smell. There may be

limitations in the equipment, security or connection which may render the visit

inadequate for treatment or may result in a breach of privacy. If I am unable to

adequately assess you then I will refer you for in-person treatment.

• Do you understand the benefits and risks of telemedicine?

• Do you have any questions before we proceed?

• Do you wish to continue with this telemedicine visit?

Considerations for Verbal Consent include:

SVMIC has resources for informed consent on the website at svmic.com

Consent for telemedicine encounter

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A physician must have appropriate patient medical records or be able

to obtain information during the telemedicine encounter adequate to

treat the patient.

• All pertinent data and information from any telemedicine encounter.

• The technology used must be entered into the medical record. Quality of

transmitted information

Can the physician form an opinion?

If not:

• Declare so to the patient; and

• Direct the patient for an in-person visit or request additional data

Assessment of appropriateness for telemedicine

TN BME rule 0880.02.16

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Scope of Practice and Standard of Care

There’s nothing virtual about virtual medicine – Remember you’re providing

health care to patients.

• Continue to meet standards of care when delivering care by telemedicine

• Treat the patient just like you would in the office

• Comply with laws and regulations in the treatment of patients

• Look to the location of the patient to determine the standard of care

• Telemedicine is not something to dabble in and if you’re new to the

process, consider engaging your EHR vendor to get you started

• Look at options with your EHR or explore other virtual commercial

products, particularly if you believe telemedicine is a natural extension of

your current practice

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Cold and Flu

Seasonal Allergies

Stomach Viruses

Sore Throat/Ear Ache

Minor Infections

Rashes/other

skin conditions

Urinary tract infections

Pink eye

Typical Telemedicine Services

Prior to the COVID-19 pandemic, most telemedicine services treated

common ailments such as:

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Vital Signs are Vital

The physical exam

Vital assist tools

Observation

Specialty society/

association guidance

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Patient has acute illness

requiring exam

Refer for in-person treatment examples

Sounds/appears

breathless while speaking

Appears mentally or

physically unstable

Physician is unable to

assess the patient without

being physically present

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Documentation

The most important defense tool if care is later challenged

Obtain consent for a telemedicine encounter

Documentation must be contemporaneous, include your exam, impression and plan

Document referral for necessary testing or consultation

Follow-up recommendations & provide contact information

Acknowledge when telehealth is not appropriate and refer for in-person visit

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• Where is the physician storing the information

from the encounter?

• What is the document retention period(s)?

• How does the physician get access to the

information?

• How does the patient get access to the

information?

• How does the MPL insurer/payer get access to

the information in the event of a claim or audit?

• Multi-state considerations for document

retention

Medical Records

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FAQ: Should I place a statement in the medical record that treatment was provided during COVID-19?

Answer: No. SVMIC does not recommend creating a separate

statement that treatment was provided during COVID-19. Many of

these statements include language waiving liability or outlining a list of

deficiencies. Such a statement may not shield a physician who

provides substandard or unnecessary care.

• Liability exposure will not be waived by a statement of the challenges

of providing care during this unprecedented time.

• Keep in mind, the decision to provide care and offer treatment, may

expose a physician to liability, if:

• The necessary treatment is determined to be below the standard

of care

• Unnecessary treatment or treatment without consent is provided

(even if the treatment would be within the standard of care)

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Telemedicine Liability Coverage

• Contact your Medical Professional Liability Carrier to ensure appropriate

coverage

• Generally, telemedicine is covered under your SVMIC policy when:

• You are practicing within the scope of your licensure;

• You are following the telemedicine guidelines, if any, of your state medical board;

• Providing care to an established patient; and

• Establishing a relationship with a new patient who resides within the state in which

coverage has already been agreed upon by SVMIC.*

• *To provide telemedicine to new patients outside your SVMIC coverage

area, contact the Underwriting Department.

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Key Considerations When Practicing Telemedicine

1. Contact the Medical Board in every state where you plan to treat patients.

2. Review the Board regulations for every state where the patient is located.

3. Contact your Medical Professional Liability Carrier about coverage for telemedicine. NOTE: If a claim arises, you will likely be sued in the state where the patient is located and would have to defend it there.

4. Be sure you are comfortable with the standard of care for the visit. You can adequately assess the patient’s complaints, adequate exam, develop a diagnosis, recommendations, follow-up plan and other aspects.

5. There could be a coverage issue if the care violates licensing rules and regulations. That may be an exclusion from coverage.

6. Contact the patient’s healthcare insurance carrier and ensure they will pay for this visit. A) If the carrier won’t, then that might red-flag a bigger concern with the visit. B) It is important to address that with the patient upfront and avoid a surprise to them and hopefully limit problems with the patient paying later.

7. Address the practice of telemedicine with your own group/employer to ensure telemedicine is allowed. The group may already have policies and procedures that should be followed to avoid a defense issue if care is challenged.

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Key Considerations When Practicing Telemedicine

8. It is important to remember that the telemedicine visit should be within the physician’s scope of practice (diagnosis, consultation, treatment, follow-up and other aspects)

9. Both the physician and the patient must utilize adequately sophisticated technology to enable the remote physician to verify the patient’s identity and location with an appropriate level of confidence.

10. Even with relaxed HIPAA technology requirements, remember the physician-patient conversations are confidential. It is the provider’s responsibility to discuss the question of confidentiality and identify who is the room with the patient as well as the provider.

11. Obtain consent from the patient to treat them by telemedicine. This conversation may be documented as written or verbal, depending on state requirements. A simple consent form or verbal conversation should suffice. A macro may be developed to assist. Document any consent discussion.

12. Document thoroughly. Pay attention to an appropriate examination, clinical judgment and differential diagnosis. Your documentation should support the care provided and follow-up discussion.

13. Telemedicine is not appropriate for all conditions. Refer patients for in-person treatment when indicated. Do not attempt to practice medicine via telemedicine if diagnostic testing or consultation with a specialist would be required at an in-person visit (unless you can accommodate those needs).

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Questions

Michael Cash, MHSA, FACMPESenior Medical Practice Consultant

michaelc@svmic.com

Julie Loomis, JD, RNAssistant Vice President

juliel@svmic.com

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