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Telehealth Informed Consent and Insurance Reimbursement

— June 26, 2020

Coronavirus has made telehealth an invaluable tool, but required document could limit its reach.

For health practitioners, getting insurance to cover a patient’s services can sometimes be a major headache.  It doesn’t help that different states have different requirements.  Add a pandemic into the mix, and the situation can become overwhelming.  Now that virtual appointments have become vital, issues surrounding informed consent and coverage have compounded.

The District of Columbia and 38 states require patients to give their consent either in writing or verbally before practitioners can conduct virtual appointments.  Telehealth consent details the risks and benefits of online visits, security measures taken to protect a patient’s privacy, and the individual or insurance company’s financial responsibility for treatment.  Depending on the state, doctors may also have to secure consent in electronic or paper form.

A written document can be hard for providers to get when the patient is not actually in the office.  If an e-signature program is not readily available, doctors must rely on allowing patients to e-mail or fax their agreements.  In more than twenty states there could be reimbursement problems under Medicaid if the telehealth consent requirements are left incomplete.  Legal implications could also arise.

Telehealth Informed Consent and Insurance Reimbursement
Photo by YouVersion on Unsplash

In Maryland, for example, doctors seeking Medicaid payments for treating low-income patients must get their consent and document the exchange.  If the patient is unable to provide consent, the medical record must contain in writing an explanation as to why it wasn’t obtained.

In 2016, Oklahoma repealed its telehealth consent requirement as state health associations said the mandate “was redundant.”  However, with the coronavirus, past decisions such as these could hinder a patient’s ability to see his or her physician.  If states eliminate the informed consent requirement altogether, however, doctors could see an increase medical malpractice and contract disputes.

Lisa Mazur, a partner and co-chair of Digital Health Practice at McDermott Will & Emery in Chicago, said, “Because the informed consent includes language about how the patient’s information will be used and lists the liability or risk exposure for the health-care provider, we could see an increase in litigation without it.  If patients are injured and file a lawsuit or submit a challenge, the providers can’t point to the informed consent form, which in that case, would be their safety net.”

“It’s important to give patients full disclosure of what services are provided and what insurers will get in the bill or if they will get the bill,” added Joseph Kvedar, professor of dermatology at Harvard Medical School and president of the American Telemedicine Association.

Mazur explained, “If you don’t have an informed consent form that spells out financial responsibility, there could be a contractual dispute that could open up the door to whether or not the telehealth company had the authority or permission to charge the patient or their insurance directly.  Doctors and telehealth companies’ payments are at risk if there isn’t written acknowledgment or agreement of the patient’s ascent to certain things, one of which is financial responsibility or being charged for things, especially if their health plan doesn’t pay for certain services.”

After the coronavirus outbreak, some states such as Alabama, Delaware, Georgia, and Maine allowed for verbal consent rather than having the patient sign a written consent form.  But, some states, such as Mississippi, require a written consent to fulfill the Medicaid reimbursement requirement.

“It would be great to have one consent for electronic care and have everyone sign on,” Kvedar said. “We could at least have physicians collect the informed consent per carrier once a year instead of every single visit.”

McKinsey & Company’s COVID-19 consumer survey conducted in April found 76% of consumers “are highly or moderately likely to use telehealth in the future.”  This means, if they haven’t done so already, many patients will be making the switch and will need to understand their rights and the documentation required in order to continue utilizing these services.

Lani Dornfeld, member in the health-care practice at Brach Eichler LLC in New Jersey and Florida, said,  “From the information I’ve gotten from doctors, the whole regulatory scheme made it hard for them to incorporate and implement the administrative checklist during this critical time.  Patients could be suffering during the pandemic, and even after, if the processes aren’t at least streamlined.”


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