Telehealth: Frequently Asked Questions

For licensed practitioners who incorporate telehealth services into their traditional office practices, The Doctors Company’s professional liability policy makes no distinction between traditional care and telehealth services. Practitioners are strongly encouraged to determine local licensing requirements by checking with the licensing boards in the jurisdictions where they practice and in the states where their virtual patients reside.

For policy coverage questions, contact your agent or broker or The Doctors Company at (800) 421-2368. Practitioners who are not insured by The Doctors Company should check with their professional liability insurer about coverage.

Healthcare professionals who intend to provide telehealth services across state lines must be licensed in the state where they practice, and they are responsible for determining licensure requirements for the state where the patient is receiving care. Many states require a full license to treat and prescribe for their constituent patients via telehealth. Some states will accept an Interstate Medical Licensure Compact license. A few states allow “infrequent” practice without a license or practice in collaboration with a practitioner who is licensed in the state where the patient is located.

Practitioners who intend to practice across state lines (or who are already doing so) should check with the appropriate licensing boards in each state where they intend to provide telehealth services and obtain appropriate credentials before accepting patient appointments. For more information, see our article “Telehealth Frequently asked Questions.”

The following strategies can help you address the challenge of caring for patients who are out of state for school.

Follow the licensing guidelines and state statutes described in the “Do I need a special license to treat patients across state lines?” section. The practitioner can review the academic calendar with the patient and family (as appropriate) and arrange to see the patient for medication monitoring during a visit home. Colleges and universities have student health centers. With permission from the patient or parent/guardian, consider developing a collaboration with the student health center.

The standard of care for telehealth patients is the same as for in-person care. In a professional liability claim, the question is invariably whether the healthcare practitioner delivered care and treatment consistent with that of other similarly trained practitioners under the same or similar circumstances.

Many claims involve an allegation of failure or delay in diagnosis. If diagnosing a condition requires a hands-on assessment, the patient must be seen in person. A clinician who encounters a potentially high-acuity condition via telehealth but does not refer the patient for an office visit or to the emergency department faces a potential liability risk if an adverse event occurs. That liability is essentially the same vulnerability the practitioner would face after failing to make a needed referral following a face-to-face visit.

The technology involved in delivering telehealth care might create additional liability exposure for data breaches and HIPAA violations.

Patients not deemed incompetent and/or assigned a legal guardian have the right to refuse care. Your responsibility as a healthcare practitioner is to advise the patient of the benefits of the recommended treatment, the risks of failing to follow the recommendations, and any potential alternatives. Consider asking the patient about the possibility of involving a significant other in the discussion. Sometimes the presence of a supportive family member can be helpful. In addition, if the patient’s clinical condition is significant, the support person can call 911 if needed. If the patient persists in refusal after discussion, adjust the treatment plan accordingly and document the discussion in the patient’s record. See our article “Informed Refusal” and our Refusal to Consent to Treatment, Medication, or Testing sample form.

A telehealth-specific informed consent discussion is considered best practice, although not all states require written consent. Practitioners who use telehealth should be cognizant of their state’s definition of telehealth and informed consent requirements. The telehealth consent discussion should address the potential for technology disruptions and backup plans, patient and practitioner identification, and the patient’s right to decline a virtual visit and request an alternative, such as an office visit. Typical telehealth risks include the potential for converting to an in-person visit based on the patient’s condition, health information privacy and security risks based on the patient’s environment and communication technology, and technology disruptions. For more information, read our article “Informed Consent: Substance and Signature.” Find a sample Telehealth Informed Consent form on our Informed Consent Sample Forms page.

Documentation is critical. In addition to what a practitioner would normally document during any visit, documentation for telehealth visits should also include telehealth informed consent, confirmation of the patient’s identity, and the modality of telehealth being used (that is, the telehealth platform or video service). If the patient has taken vital signs (such as temperature, pulse, blood pressure, or weight), document the information as “patient provided.”

Telehealth does not change the fact that practitioners should use their best clinical judgment and document their reasoning in patients’ records. If a patient’s complaint would generally warrant an in-person visit, weigh the risks of any emergent condition against the risks of an in-office visit, make the determination on the type of examination required, and mitigate liability risks by documenting the reasons for your decision in the patient’s record. For more information see our article “Nine Tips for Telehealth Clinical Documentation.”

Yes. Payers have long reimbursed practices for telehealth visits. With the practical necessities created by the pandemic, the scope of services that may be compensated and the amount allowed have been revised. Some payers differ on what constitutes a telehealth visit and whether telephone calls and asynchronous services (such as those by portal or email) will be reimbursed. As with any type of healthcare billing, practices must follow the most current payer guidelines and are encouraged to review their payer-practitioner agreements to determine compliance requirements and levels of reimbursement.

Prescribing: The DEA, jointly with the Department of Health and Human Services (HHS), has extended the full set of telemedicine flexibilities regarding prescribing controlled medications as were in place during the COVID-19 public health emergency, through December 31, 2024.

Medicare and Medicaid: Many of the CMS telehealth billing concessions have been extended through December 2024. See the CMS Medicare Payment Policies page for more information. Specifics may be found on the CY 2024 Physician Fee Schedule Final Rule.

Medicaid telehealth flexibilities will not be affected. States already have significant flexibility with respect to covering and paying for Medicaid services delivered via telehealth. For more information, please see HHS’s State Medicaid Telehealth Coverage.

HIPAA/HITECH: The HIPAA enforcement discretions offered during the pandemic are no longer in effect as of August 9, 2023. All practitioners using telehealth must be compliant with preexisting telehealth privacy and security requirements. For example, current electronic technologies used for remote communications required to comply with the HIPAA Security Rule include communication apps, VoIP technologies, electronic recordings or transcriptions of telehealth sessions, and electronically stored audio messages. For more information, see the HHS Guidance on How the HIPAA Rules Permit Covered Health Care Providers and Health Plans to Use Remote Communication Technologies for Audio-Only Telehealth.

This is a very challenging and complex scenario. Practitioners who are considering this option should consult with an attorney who is familiar with healthcare laws in their home state, as well as an attorney in the state where the APC will be practicing. Questions to consider include specific licensure requirements for both parties in each state, how supervision will be managed in the APC’s home state (if required), the scopes of practice for prescribing and treating in both states, and a review of third-party payer contracts.