Well, thank you so much for joining us for our telemedicine presentation. Before we get started we are going to introduce ourselves. So I'll begin. My name is Carrie McDonough, I'm one of the senior counsels with John Hopkins Health System. And I advise on areas of risk management, medical staff affairs, credentialing and patient care and ethics. >> Hi, my name is Megan Atkinson. I actually split my time between the health system is a senior counsel and the John Hopkins University's associate general counsel. I advise on healthcare transactional matters and tell me. >> Jess. >> Sure. My name is Jessica Cast Eva, I'm associate senior counsel for Johns Hopkins Health System. I advise on HIPAA and privacy related issues. >> Hi and I'm Mary Thompson, I'm also senior counsel for the health system and I advise the medical staff affairs patient matters as well as telemedicine issues. And thank you again for joining us today. And just to start off the presentation, we wanted to advise that this isn't considered to be a legal advice. Or representation by John Hopkins medicine is purely intended for education purposes to help identify discrete areas of the law to help you ask questions. Should you have any concerns about telemedicine? So let's give you sort of a broad primer of some of the considerations that we're looking at as we proceed forward. Again, if you do have a legal question you should seek counsel with your own attorney client relationship and someone in the state in which you practice. So telemedicine generally is essentially a two way real time interactive communication between a practitioner and a patient at a distant site. And there's multiple modalities in the way that you can provide telemedicine. There's multiple definitions of how telemedicine is described, whether it's through the federal regulations and CMS versus Maryland, which has a different term. And each definition within the state and who can practice telemedicine differs across, the blanket of states in the country. And for example in Maryland, telehealth does not include telephone, email message or facsimile transmission. But in other states some of those categories could be considered or in the definition within the practice of telemedicine. So whenever you speak to engage in telemedicine, you should just be mindful of what statutory definition apply to where you're practicing. And as mentioned before, they can be delivered in a variety of different ways. You can have interactive audio video where you're communicating directly with the patients. You can also have a store and forward where maybe photos or messages are shared and sent through. And online process they can have remote patient monitoring within hospitals are within facilities that are located in. And even remote interpretive services where maybe your practitioner will obtain some sort of diagnostic, study your testing. And share that with another provider in another state or sometimes in another country. >> And so once you've kind of looked at the definition of telemedicine in the jurisdiction in which you're practicing. And then determined whether the way it's being delivered, which modality you've chosen to deliver it, then you want to think about the benefits and risks of practicing telemedicine. I think most of you in your practice will agree that accessibility is probably the biggest benefit of telemedicine. This isn't for both the practitioner and the patient being able to access high quality health care services regardless of location is a real benefit. Convenience is another one if it earlier in the morning or late at night or after hours or Saturdays telemedicine certainly makes it easier than traveling to a particular location. But like anything that comes with benefits, you have to consider the risks. And practicing medicine risks are always something at the forefront of your consideration. So this is just a simple list of some of the risks that you need to think about and consider when you're engaging in any type of practicing medicine. But in particular when you're practicing medicine via telemedicine? So malpractice, insurance, privacy issues. Is this effective? What is the emergency backup plan? Are you establishing a new relationship? Is this an existing relationship? And as we will get into more detail, the licensure issues are very important risks to consider. So anytime you're beginning of practice and starting a telemedicine visit, you want to think about, what kind of standard do you need to apply to the practice that you're engaging in. I think what should be at the forefront of consideration is that you will be held to the same standard of practice? The same standard of care that's applicable to in person health care settings. So the next slide, we'll get into this in more detail. So what does that mean? That means the same legal standards apply whether you're talking to someone through a screen or they're standing in front of you, to start with. Does the patient in front of you have the capacity to understand what's going on to consent to the treatment? Even the telemedicine treatment, even the fact that you're not touching them or examining them. Do they understand what's going on in the visit that you still have to make that determination. Even if it's via telemedicine, then that follows you need informed consent. Many states have requirements for specific consent to telemedicine in and of itself. So you need to look at your individual states and determine whether you need written consent, it's verbal consent is applicable. I need to make sure that's documented in the visit in the note. Whatever mechanism your organization has determined the duty to warn the concept that if you believe that the patient on the other side of the screen is a danger to themselves. Or a danger to others simply because they're not in front of you in person doesn't obviate that duty that you still have a tariff off. Warning of making sure that you've protected someone else or the patient confidentiality and privacy. We will get into more detail, Jessica will. [COUGH]. Walk us through that. But these are paramount in any patient situation, but especially in a telemedicine situation, making sure that the platform you're using is confidential. Make sure that the area that you are located in when you're conducting the visit is confidential. There are people around there. You can't be overheard reminding your patients that the privacy is their responsibility as well. The applicability of miners to be able to consent to their own treatment, the ability for them to. Require parental consent or parental involvement. All those rules still apply even in the telemedicine setting. And it seems like it will be a lot easier for miners to access care. You still have to be very careful about making sure that you have the appropriate consent when you're dealing with a minor through telemedicine. Were ADA and language services requirements also still apply in the telemedicine setting, so making sure that you have an interpreter. Making sure that you've accommodated someone who might be hard of hearing in some or have sight limitations. All of that still needs to apply when you're conducting a telemedicine visit. And the chaperone, many organizations have requirements for certain types of exams to have chaperones, certain levels of undress or sensitivity of the exam. So you will need to figure out in your own organization whether those chaperone requirements have translated into the telemedicine visits, it would have to give careful consideration to sensitive exams through video. And whether or not having a chaperone will be required should at least be offered to the patient or in some way would hinder the telemedicine that you're performing. I'm going to let Megan talk to who can practice telehealth. >> So who can practice telehealth is a question that you have to look at on a state by state basis. But in Maryland the list of professionals on this side are permitted to practice telehealth. So physicians, respiratory care practitioners, athletic trainers, perfusionists, PAs, audiologists and SLPs psychologists, other mental health professionals and OTs, physical therapists as well if we didn't mention that. So one of the key considerations when practicing telehealth is licensure and the general rule is a provider must be licensed in the state in which the patient is located in order to legally provide telehealth services to that patient. So the location of the provider is less important than the location of the patient. For example, if the provider goes on vacation to Florida and wants to see his or her patients back in Maryland via telehealth, that's probably going to be fine. There may be some tax issues you have to look at and you have to check with your organization on that. But typically the issue is where is your patient? So, every state has the ability to set rules on which types of providers can practice telehealth and under what conditions. So that rule about being licensed in the location of your patient is sometimes waved in circumstances like radiologists. And pathologists are often allowed to practice across state lines in consultation with other providers without having licensed in the state in which the patient other providers located. There are also exceptions for provider to provider communications generally. So peer to peer consults and then also you have to look at where your patient is located if they're in a different state even if you're licensed there. So if your patient is located in another facility, another hospital long term care facility generally you need to be credentialed at that facility and you need to work with the facility in order to get permission to see the patient. You can't just do a telehealth visit with the patient on their iPhone and you wherever you are without having the buy in of that other facility. Sometimes you put clinical services agreements in place in order to do that. Sometimes you do kind of one off visits and just build pro fees again with the permission of the other facility. But the key to all of this is you need to look at the licensure laws of the state in which your patient is located before you proceed with a visit. >> And then to add on to what Megan was saying as well, the provider location is particularly the patient location. Sorry, is particularly important because each state has their own separate boards of life insurers that enact guidelines or regulations on what's permitted and what is not what requirements that you need. And whether there are certain exceptions engaged in a new patient relationship. Do you have to see that patient in person first before you can engage and follow up something when telehealth visits. So again the state location where the patient is exceptionally important in this regard. And likewise as Megan was referring to, there are some issues on the provider locations by that apply but she's sort of alluded to let her continue. >> So the provider location is going to be important for purposes of payment during the pandemic. There have been a lot of loosening of restrictions on both patient location and provider location and also modality meaning two way audio visual communication versus just telephone communication. But typically in order to charge for a visit, you need to be following the rules of whatever payer contract you're operating under meaning who is the payer for the patient. And what are your the restrictions under your agreement with that pair? Medicaid, it's going to be the same thing. You've got to look at the individual state requirements. Medicare currently during the pandemic is offering expanded an additional reimbursement for telehealth services prior to the pandemic. The payment for telehealth services was generally restricted to patients in rural areas and in facilities. Those restrictions were dropped during the pandemic. It's hard to say what's going to happen once the pandemic ends but you need to kind of double check to see if you're going to get paid for a telehealth visit. And then internationally if you want to see a patient who is outside of the United States via telehealth which is pretty common for large academic medical centres you have patients all over the world. Maybe you see them at your facility and then they go home. Generally you have to be licensed in the country in which your patient is located. So you know 10 or 15 years ago. This wasn't necessarily the case but the laws have finally started to catch up to the technology. So you need to check the licensure laws, the data privacy laws, the tax laws and any other regulations in the country in which your patient is located before you see them if they are outside of the U S. And I also note that it's a pretty common misconception that if someone is inside a U S Embassy that no rules apply and you can see them as if they were in the United States. But that's not the case that the in country restrictions on telehealth will still apply. >> So as Megan and Erin just described, you have to be licensed. Most of the time in the location where the patient resides. The licensing boards will discipline providers though provide services to patients located in their jurisdiction. It will discipline for failure to abide by the licensing requirements, as well as failure to abide by the standard of care in that particular state. We have seen an increase in complaints to various licensing boards by patients who are receiving telemedicine services. And we anticipate that the boards will focus on this as telemedicine grows [COUGH] across the nation. Some of the complaints range simply from the inability to contact the provider, if the call is dropped, or if the video visit is dropped. Sometimes it's not receiving the same consent that you were required to provide for telemedicine. And sometimes it rises to the level of not providing appropriate care in the telemedicine setting, not advising the patient that this needs to be done in person. That in order to provide comprehensive good care, we need to move from a telemedicine visit into an in person visit. So this is by way of reminder that even if you're not in the state in which your patient is located, you're still subject to their licensing boards and the possibility of discipline. >> And Kerry, will those licensing boards refer the matter to the licensing board of the state in which the physician is located? >> So that's a great question. And yes, many times they will, especially if the states are part of the interstate medical licensure compact. There are requirements in those compacts that each state notify other state in which the provider is licensed about any discipline or any complaint. Down the line, the providers will be required to answer questions on credentialing applications, insurance applications as to whether or not they have been disciplined. So this would have some broad reaching effects. And the word of caution is simply to be aware of the rules in the place that the patient is located. >> So next I'm going to talk a little bit about some of the considerations you want to take into account when you're looking at how you're providing telemedicine. Ordinarily communicating PHI between patient provider is usually acceptable under HIPAA and other privacy laws. But when you bring in telemedicine you have to consider the method, security, encryption, and other safeguards when you're providing this service. During the COVID pandemic, the Department of Health and Human Services did exercise enforcement discretion, and waves, and penalties. For using different types of everyday communication technologies like Face Time, Skype during the time of the public health emergency. But keep in mind though that those still have some risks. And we want as much as possible to make telehealth platforms as secure as as possible, such as buying integrating encryption and other safeguards. It's important to remember that any data transferred over the internet runs the risk of interception by threat actors like hackers. And that's something that should be communicated to providers as well, as patients engaging in telemedicine. As I mentioned, there are some waivers that are currently in place that have allowed for different uses of technology platforms like Zoom or Face Time. But again, make sure that as much as possible, we're notifying patients that these third party applications potentially introduce privacy risks. When we do want to encourage or I should say when we want to enhance the security and engage with more secure telehealth platforms. It's important to make sure that we're still complying with other HIPAA requirements, such as entering into business, associate agreements with these technology vendors. And in doing due diligence in making sure that we are selecting secure and appropriate telehealth vendors. And as Kerry mentioned, providers should always use private locations. And patients should not receive telehealth services in a public or semi public setting. We're talking about Starbucks, it's more appropriate to have it in your own home, when your provider providing a telehealth appointment. You want to make sure that there aren't people walking in the background or other people that might overhear the conversation or the appointment taking place. And the next slide talks about, just some other considerations when we're talking about telehealth. And I'll let, I think Kerry or Megan talk a little bit about the next things here. >> Sure. >> Yeah, absolutely. >> Yeah, [LAUGH] go ahead Megan, you go, we'll start over the recording. You take this one Megan. >> Okay, so I'll start at this one and Kerry Jaimin, whenever but one of the things we have to consider is prescribing limitations over telehealth. So again depending on where your patient is located, if they're in the same state as you, you're probably not going to have too much of an issue. But often, I don't know there's probably 20 something states that have requirements for registration for the prescription of controlled substances beyond just a DEA license. And so if your patient is in a neighboring state and that state happens to have a separate registration requirement. You're not going to be able to prescribe the controlled substance to your patient there without having that registration, it's not going to be filled by the pharmacist there because it can't be. So, some states also have rules on how and when via telehealth, you can prescribe controlled substances even if the patient is in the state in which you are in. So you have to check the rules of your state to make sure that, what you're doing is appropriate. And also just to kind of on a practical point of making sure the prescription gets filled, if it needs to be. >> And some of the other things on this list. Our imaging, and recording, and data sharing, and usage and your individual organization will have policies [COUGH] that you have to abide by doing a video visit makes it very easy for someone to hit the record button. Sometimes it can even be done without the knowledge of the person who's on the other side of the video screen. And so, it's important that you address any of those recording issues per policy for your organization. As well as keeping in mind with the local jurisdictions requirements for recording someone or keeping an image of someone. In data sharing and usage would be really nice for research purposes or for the ability to have continuity of care to be able to Record and share data but the telemedicine visit in and of itself is treated the exact same way as the medical record, still holds all the same privacy requirements. So either written consent written acknowledgment that you're going to share it written center and it's going to be part of a research study or used in some type of fashion other than providing telemedicine. And I think we have talked about the international licensure laws but other countries have different privacy laws. Different tax laws that all need to be considered when you're engaging in telemedicine. >> Yeah and particularly when the patient that you're providing services to reside in another country. You have to keep in mind that major privacy laws like GDPR may come into play. And you want to make sure that if you are subject to GDPR that you're complying with those obligations. Getting the necessary consent in providing the necessary the appropriate rights to those patients that you are required to under those overarching privacy regimes. As far as other international privacy laws, there's also different jurisdictions less than the GDPR that have their own privacy laws that we have to keep in mind. Just like the United States and just like individual States might have enacted specific privacy laws, it's the same justice as it is outside the United States. >> Okay, so now take all the information that we told you about, all the rules, all the licensure rules, all the scope of practice rules, all the hip privacy rules. And just throw them out the window because that's [LAUGH] what they in general did when the covid crisis hit. It's a little bit of italian cheek, but essentially when the pandemic hit, everyone was told to stay home. There was a large contingency that got together to say, well, how do we continue to provide good safe care. If we're all required to be quarantining or not moving, not providing, not going to our doctor's appointment or leaving our home. So the first thing that happened was a number of states, including Maryland and the federal government all issued waivers to licensure. So the rule that you had to be licensed where your patient was located has been waived during the covid crisis. The problem is it's been waved in a very patchwork manner. So while you may not have to be licensed in the state, you still have to understand what waivers have applied. What exemptions applied do they apply to physicians and allied health providers equally. Do they allow for physical therapists to operate under the waiver? So while the waiver of life insurers occurred, there's still a lot of attention that needs to be paid to those rules in each individual state. The other big issue that is discussed when we talked before about a standard of care that applies in a crisis. Sometimes the ability to apply the standard changes. So many states and the federal government enacted various liability and immunity protection for providers providing telemedicine. And for providers who were continuing to provide in person care. And so this was very helpful for many of our providers as they thought about, well, it's not perfect for me to do this via telemedicine. But it's the best I can do right now because we're not supposed to be bringing patients in. And so these immunities will help if there were ever any type of medical malpractice allegations with the pandemic itself provides a different level of review in the standard of care. And then being able to build Medicare, Medicaid and then many private payers all followed right along the lines of making exceptions to billing. Before you couldn't build for a telemedicine visit if the patient wasn't located in certain jurisdictions. Now you can before you couldn't build for a telephone visit. Now, many of the payers allow that all of these exceptions, our only during the public health crisis. And we are starting to see these being pulled back and expire and we anticipate that they will all expire at the end of the crisis. Even though there is some legislation to try and continue it, there's no guarantee. So you need to be very aware of how you're practicing now and how that might need to change at the end of the public health crisis. >> So we kind of talked about this before controlled substances and prescription of controlled substances. So again, you've got to check the laws in the state, in which your patient is located to figure out whether it's okay to prescribe a controlled substance via telehealth. Some states require that a patient relationship be established prior to the telehealth visit in which you're prescribing end quote substance. And some states obviously require, like I said before a separate registration in order to prescribe controlled substances in their state. So, right now during the covid crisis there are some exceptions, especially for methadone patients. And other patients who are receiving controlled substances for purposes of drug treatment therapy. But otherwise in general check the laws in the state in which your patient is located before attempting to travel controlled substance. >> So I think this is probably our last slide or second to last slide. So for our organization especially in light of the pandemic crisis, we had to figure out very quickly how do we communicate all of the changes. All of the immediate changes that happened with telemedicine. And then now more long term how do we communicate that the growth and the changes in telemedicine. So we have set up through our office of telemedicine a daily email but let folks know what's going on, what changes are coming? What pieces of legislation are moving forward. We developed FAQS that help track what's going on in each state as these life insurer waivers or other telehealth type waivers expire or become expanded or change in some way. They also set up a telemedicine central mailbox, so a place where all of our providers can email questions to. So that they have one central location and then one place where the responses provided. And then our organization has a pretty in depth internal and external website with regard to telemedicine. Where our patients can find information about what we offer via telemedicine. And where our providers can go to drill down on their questions and help to educate their patients on what is telemedicine and what our organization can provide.
