With the current pandemic, telehealth is coming in handy as a great way for nurses to “see” their patients and treat them as well as is possible during a nationwide quarantine. That said, there are still telehealth liability issues that you need to keep in mind.

Georgia Reiner, Senior Risk Specialist, Nurses Service Organization (NSO), took time to answer our questions to find out exactly what you need to know to protect yourself and your patients.

What is the most important thing that nurses need to keep in mind when using telehealth—to protect both themselves and their patients?

Telemedicine allows nursing professionals to efficiently and conveniently care for patients. As the provision of health care services via telemedicine expands during the current COVID-19 emergency period, nursing professionals may face new liability exposures.

Nurses must be aware of their organization’s policies, their state practice act, and laws regarding telehealth. It’s their responsibility to know and meet the requirements necessary to provide telehealth services to their patients. When nurses are aware of the risks, they can take steps to protect themselves as they care for others during these difficult times.

Can you give insight into licensing concerns—if they’re treating people over states lines, what do they need to be aware of?

Certain states have different laws concerning when and how telehealth may be practiced, so nurses must check their state statutes, regulations, and policies, as well as state licensure boards regarding practice limitations before initiating services. During the nationwide public health emergency due to COVID-19, some of these statutes and regulations may be waived, so it is important for nurses to be aware of what the requirements are both during and following the emergency period.

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Some states require practitioners who engage in telehealth to be licensed in the state where the patient is located and abide by the licensure and practice requirements of that state. Before embarking on interstate telehealth, practitioners must review the state practice act of the state where the patient resides, and make sure that their work falls under the state’s scope of practice in that location.

How can they abide by HIPAA regulations?

Practitioners must comply with HIPAA regulations to ensure the privacy and confidentiality of patients’ data, and keep their information secure. In response to the nationwide public health emergency due to COVID-19, on March 17, 2020, the HHS Office for Civil Rights (OCR) announced that it will waive potential HIPAA penalties for good faith use of telehealth for the time being. This applies to telehealth provided for any reason, regardless of whether the telehealth service is related to the diagnosis and treatment of health conditions related to COVID-19.

This notice means that covered health care providers may now use popular applications that allow for video chats—including Apple FaceTime, Google Hangouts video, or Skype—to provide telehealth during the COVID-19 nationwide public health emergency without risk of incurring a penalty for noncompliance with HIPAA Rules. 

However, health care providers that chose to use these applications to provide telehealth are encouraged to notify patients that these third-party applications potentially introduce privacy risks, and providers should enable all available encryption and privacy modes when using such applications.

Providers may wish to implement additional privacy protections for telehealth while using video communication products. While solutions like FaceTime or Skype may be a good short-term solution during this national health emergency, looking towards the future, providers should seek technology vendors that are HIPAA compliant and who will enter into HIPAA business associate agreements (BAAs) in connection with the provision of their video communication products.

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What about informed consent for the provision of telehealth services?

Patient consent is always required prior to participation in telehealth services.

Nurses must obtain a patient’s consent to telehealth services before providing care, which should include an emergency or contingency plan in case of technology breakdown.

Can you give some tips for how nurses can best deliver quality care remotely?

  • Increased use of telehealth means that health care organizations and practitioners need to develop guidelines for monitoring telehealth practitioners and sharing internal review information to ensure that high-quality care has been provided.
  • Practitioners must adhere to traditional clinical standards of care, and practice within the scope of practice authorized by law.
  • Outcome measurement offers practitioners useful information about how well a telehealth program is functioning, including further refinements that may be needed.
  • Practitioners must be trained to best utilize telehealth technology, and routine audits of equipment and software functionality must be performed to know how to respond to equipment malfunctions.
  • Satisfaction surveys help capture data regarding patient and provider perceptions of the telehealth program, as well as utilization patterns and the overall quality of care.

What should they never do via telehealth? Why?

Nurses must never share patients’ private information—confidentiality must be maintained. Violating patient confidentiality or behaving unprofessionally can result in a complaint filed with the state board of nursing.

Never use a video conferencing application without enabling all available encryption and privacy modes. Some applications, such as Zoom, can be public-facing and could expose patients’ private information.

Please address documentation concerns that nurses may have during this time.

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Nurses must document all work performed via telemedicine to avoid potential liability, just as thoroughly as other patient encounters, with both partners to the telehealth agreement contributing to the process.

The American Health Information Management Association, telehealth records minimally should include:

  • Patient/client name.
  • Patient/client identification number at originating site.
  • Date of service.
  • Referring practitioner’s name.
  • Consulting practitioner’s name.
  • Provider organization’s name.
  • Type of evaluation to be performed.
  • Informed consent documentation.
  • Evaluation results.
  • Diagnosis/impression of practitioners.
  • Recommendations for further treatment.

Whether verbal, audiovisual, or written, all communications with patients must be documented in their unique medical record (electronic medical record or paper chart) in accordance with documentation standards of in-person visits.

Follow-up instructions and any referrals to specialists, the specific interactive telecommunication technology used to render the consultation and the reason the consultation was conducted using telecommunication technology, and not face-to-face, in the patient’s medical record must all be included in documentation in accordance with state and federal regulations.

What else do nurses to be aware of regarding their liability while providing telehealth during the spread of the coronavirus?

The emergence of telehealth capabilities during the current COVID-19 emergency period presents exciting opportunities to address some of the biggest challenges facing health care.

As health care continues to transform with the use of technology and the demand becomes greater, it is essential for practitioners to be aware of the legal, ethical, and regulatory implications to their practice.

Michele Wojciechowski
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