Hey everyone! Today, we're talking telemedicine and specifically telehealth consent or telemedicine consent. It's required in all 50 states in some form or another, and so you ought to be using it if you aren't already. And, as you'll see in this article, written telemedicine consent is the way to go to ensure you have your ducks in a row.
No, telemedicine consent or telehealth consent is different from informed consent more broadly because informed consent is really whether or not you are telemedicine or brick and mortar for that encounter is really just having a conversation with the patient, or letting them know what the plan to treatment is for that particular modality or for your office as a whole.
Telemedicine consent should be used before you do telemedicine encounters. Now, every state has a requirement that you do telemedicine consent. Not every State tells you what ought to be in it, they just say it and then they kind of leave it up to either the medical boards or the regulators to kind of figure it out. But thankfully for us, we have a Federation of State Medical Boards, which is an advocacy group that helps kind of push policy for medical providers around the country. And they have a helpful list of what should be in it.
But before we dig into what should be in the written telemedicine consent, I want to talk about why it's important to have written consent. Some States, as you may know, or may not know, only require oral consent. Some states require written consent and some states don't say that much about it either way, they just say "consent."
So it's important to have written consent for a couple of reasons.
If you get oral consent, you may forget to put it in the chart. If you rely on oral consent, again, you may forget to just do it at all. So if you have in your policies and procedures, informal policies and procedures, but a checklist for you in your practice that before every telemedicine visit for the first time you have the patient talk about and agree to the telemedicine consent.
So what should be in it? As I mentioned, some States say nothing, some States just say, get it orally, but they don't describe what they're consenting to. So again, different from informed consent, telemedicine consent really revolves around just the new or the relatively new medium of telemedicine outside of phone calls. So per FSMB, they say tele-health consent should have in it the identity of the patient, the identity of the provider and then the provider's credentials, really important. Like who's talking here, who are we dealing with? And what is your medical training?
It should also include the types of transmissions permitted. You know, you may want to, and I wouldn't recommend you limit it to HIPAA compliant versions of Zoom or another HIPAA compliant software that allows interaction or messaging as well. In it you should have an agreement that the provider is the sole decider on whether or not telemedicine is appropriate. So your patient may say, "Hey, I want to come for a visit and let's do a telemedicine visit." But if you in your professional medical judgment decide that you can't provide the standard of care over a computer, then it's up to you to say, "Hey patient, no, I'm sorry, as we agreed earlier, it's my call, and this one requires in-person."
It should also include the privacy and security measures that are taken by you and your practice. It should have kind of just a discussion of the limitations of telemedicine. For some things, it's not as good as in-person, for other things it could actually be better. Like if you're a dermatologist, in a classic example, it could be better to kind of zoom in on a photo that a patient has uploaded to the portal, which is also telemedicine as well. So the discussion of the limitations, or sometimes the benefits of it, a discussion and kind of a that, you know, sometimes technology doesn't work and the call may cut out, or maybe kind of spotty. So, you know, we're all kind of just agreeing that that's a possibility and it may happen as well.
And then finally, you may want a hold harmless clause in there as recommended by FSMB, because, you know, if the internet goes out or the power goes out and they are without care because of that, then you want them to acknowledge upfront that there's not much you can do about it and that they will hold you harmless for anything that's really outside of your control, or technical glitches that happen as well.
So just to recap, telemedicine consent (called telehealth consent in some states) is required by all 50 States in some form or another, you should definitely do it in written form because it reminds you to do it, it reminds you to include every single recommended thing that's in there and it protects you as well.
And then finally, you want to make sure that it has the things that are in the FSMB or the Federation of State Medical Boards recommendations, especially in States where the regulations or the statutes are silent or don't mention what should be in the consent as well.
If you need a written Telemedicine Consent with all the FSMB requirements, you can get your Telemedicine Consent here.
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Scott Rattigan is an attorney, co-founder of a thriving functional medicine membership practice, and the founder of Functional Lawyer. He is an award-winning writer and speaker who is dedicated to helping functional and integrative medicine doctors succeed in building their dream practice.
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