Telemedicine: Potential Liability Pitfalls and Solutions in a COVID-19 World
Good afternoon, everybody. We’ve had a few more of our attendees join. So we’ll go ahead and get started. Anyone joining us later will of course be able to do that as we’re partway through our community chat today. My name is Aram hosting today’s community chat from the Cohen Healthcare Law Group. Thank you all for joining us today.
We are joined today by our friend Beracah Stortvedt. Beracah is a client executive with Marsh & McLennan Agency, business insurance division. He specializes in the healthcare industry and co-founded his firm digital health practice to help meet the unique insurance needs of telemedicine and digital health companies. He assists his clients with all of their business insurance needs from malpractice insurance to cyber liability, to directors and officers liability coverage. So with a focus on controlling costs, he looks for gaps in coverage, implements loss control measures, and markets insurance policies to obtain the best products on the market. Prior to joining the firm, he served as an underwriter at Zurich and his underwriting experience provides additional benefit to his clients. He holds an MBA from the UCLA Anderson School of Management, as well as the associate in risk management, or ARM designation. So Beracah, thank you very much for joining us today.
Yeah, thank you. It’s great to be here with you all. I really appreciate the kind introduction Aram, and I’m looking forward to share a little bit with you.
Yes, indeed. We’re looking forward to your presentation. Michael had hoped to speak after your presentation, but I’ve just learned that he’s had some very urgent business come up. So I think he’ll unfortunately not be joining us for today’s event. However, we still have a great presentation that we’re looking forward to. And of course we’ll have time for questions and answers afterward.
Awesome. Well, in a COVID-19 world, telemedicine has really transformed from what it was even just two or three months ago. And that’s what we want to talk about today is what has COVID-19 meant for telemedicine?
What are the positives, and then what are some of the potential pitfalls that you could face and what are some solutions that we can offer to help you avoid those pitfalls?
Clearly, telemedicine is on the rise. A recent study showed that in a New York City health system between March 2nd and April 14th, urgent care telemedicine visits increased by 600% over the same period last year. And non-urgent visits by over 4000%.
COVID-19 has increased primarily by necessity, but also for other reasons, the use of telemedicine. Providers are using it more and patients are becoming willing to adopt it. And part of the framework of this is due to temporary changes that have come from a number of sources, COVID-19 itself being the most obvious and stay at home orders, but also relaxed regulations, things from certain immunity for treatment of COVID patients that apply as uncertainty situations, relaxed licensure requirements that are state and locality specific to meet the significant shift in demand. Reimbursement for telemedicine at the same level as an in person visit, in many cases, I give that as a key caveat and finally what I call the HIPAA enforcement hiatus of the government, basically saying, we’re not going to enforce it, but we just want people to get the care that they need on a temporary basis.
And all of this has led to this flocking to telemedicine, which we generally see as a really good thing, because there’s a lot of things that telemedicine can do really well. It’s meeting a great need right now, and it creates great opportunity to continue to see patients for providers in this environment and for telemedicine companies. And in general, I think it’s good for the patient. The patient can get care, the care they need, when they need it, in the right form. But with all this great change, all of us from telemedicine companies to providers using telemedicine or like this gentlemen here looking out into a field of potential pitfalls.
And today I want to focus on what are some of these pitfalls, I’m going to work through five of them. And then we’ll talk about maybe some key questions or key takeaways for you of how you can navigate this maze that is in front of this man here, walk up around all of these pitfalls and capture success in being able to meet patient needs.
The first pitfall is not getting providers licensed appropriately in States where patients are located. That’s all fine and great if you’re a provider and you’re continuing to provide services to local patients via telemedicine. But if there are situations where someone has traveled or moved, or if you’re a telemedicine company who’s looking to expand into different States, it can be a huge problem to not get providers licensed appropriately. And a lot of people may assume that because of relaxed licensing requirements, as long as I’m licensed, where I am, it’s fair game during COVID, which is not necessarily true, A, in all 50 States and B, these for limited time, a relaxation of these requirements. And therefore at some point, they’re going to go back into effect. And if you’re not on top of each state, and when they go back into effect, you could be in a situation where you’ve provided services without being appropriately licensed and without exception almost, every malpractice insurance policy excludes coverage, where providers are not licensed.
The second potential pitfall is not properly billing for telemedicine services and getting ready for use of telemedicine codes, appropriately postcode. We’re at a time now where it’s been almost two months that these services have been being built for. And some of our clients are starting to say, we’re not getting paid, or we’re getting paid less than we should because they haven’t thought through how and ensured that they’re properly billing for these services. This also can create a potential pitfalls down the road on the other side, because if you’re collecting and billing for services at the rate of an in person visit, if that’s not done appropriately two years, three years down the road, a government payer, or a commercial payer like Anthem could come back and audit all of your billings to them, demand money back for over billings and potentially levy fines and penalties from the government. So this could be a significant pitfall that needs to be addressed in this time.
The third is not confirming with your carrier that they will cover your geographic expansion and the telemedicine services that you’re providing. Some carriers are regional. They don’t offer coverage in all 50 States or abroad, and some carriers don’t like covering telemedicine service. Almost every carrier has made an exception during COVID-19, but longer term as your business models change, you want to make sure now, and in the future that these services are affirmatively covered to avoid potentially not having claims pay.
The fourth is not ensuring all of the risks that are associated with telemedicine, including privacy and security liability, cyber, potential issues with HIPAA down the road, once the hiatus is over. And any technology, for those of you that are telemedicine companies that have your own technology, there could be errors in that technology that could lead to significant exposure that you want to ensure you’re protected against.
And finally not understanding local state insurance requirements, including what we call “Patient Compensation Fund” or PCF States. So if you’re operating in other States, there are certain States that require you to either participate in their fund by paying a certain amount every year, or to fill out a form exempting you, because you’re not a local provider providing your care the majority of the time in that state.
So now that we’ve talked about the pitfalls, I want to go a little bit more in detail into number four here, by looking at just some of the different exposures that can go with providing telemedicine services, depending what part of the value chain you’re in. If you’re a traditional provider, you’re probably looking at the one on the left ear, bodily injury and the two on the right cyber liability and general liability. And if you’re actually providing any technology services or you have software or a platform, the middle three also apply, you could make an error in your technology. You can infringe on someone’s intellectual property, and the products themselves could fail to perform and cause injury to a patient that’s using a platform. And so ideally when you are a telemedicine company that has all of these, you combine these coverages as much together on one policy form as possible, or you work with your broker to make sure that all of these boxes are checked appropriately based on what your exposure is.
All right, we’re coming to an end here. I told you I’d try to make this brief. I want to leave you with five key coverage items that you can address. The first is make sure your cyber liability policy has coverage for contingent bodily injury where possible. For some of you as you’re really early stage, that may or may not be possible. But to add that extra endorsement just ensures that if the system goes down for any reason and a patient’s hurt as a result because of a hack, there’s some coverage there for you.
The second is to ensure that the medical malpractice or professional liability care is aware of your telemedicine activities as agreed to cover them. We talked about this in the key pitfalls as well, but just making sure that the carrier has given you that email or that affirmative, “Hey, go, these services are covered for where you’re providing them”. The third is to make sure if you are an actual telemedicine company that has your own technology, that your cover for patient injury due to that product failing. That’s a crucial thing that a lot of people don’t think about.
The fourth is to consider if you’re billing any insurance payers or government payers, I would consider purchasing billing errors and omissions coverage, if you have the cash flow available to do so, because it’s going to protect you against those longer term exposures. We talked about earlier of it covers audit expenses. It covers fines and penalties. It covers legal costs in defending yourself against any allegations that you were overpaid for services provided.
And then finally make sure that all your providers are licensed both in the state where the provider and the patient are located. This is just a best practice to give you that sleep at night comfort level, because you don’t know how long the relaxed requirements are going to last, or whether they’re even there in a given state. And generally, if a patient brings a lawsuit, it’s probably going to be in their state of residence and you’re going to want to make sure you’re licensed there. Otherwise there could be significant problems. That’s really it. I want to leave you with, these are my goals for each of you walking away from our conversation today.
The first is I want you to make sure you’re confident in your telemedicine strategy. I’ve tried to help you look at the pitfalls of liabilities that you can focus on, hey, what really is my strategy to mitigate risk? And then how can I focus on capitalizing on this great opportunity that’s out there right now. And I think it’s here to stay in the future.
The second is to help you sleep well at night, knowing you’re well protected.
And the third is that you know where to go when you have questions or issues, I’m always available for you to help you with anything you need.
And I know that Michael and the team at Cohen Healthcare Law Group, I am not an attorney, so I say that explicitly, none of the things I say are legal advice, and I don’t know all of the regulations and the different issues around corporation formation and all the things that Michael and his team know. And so if it’s me, or if it’s Michael, or if it’s even other people that are in the space that we can introduce you to, we’d be happy to do so. And with that, I want to open it up for some Q&A.
Thank you, Beracah. And for anyone who didn’t hear this before, Michael had some urgent business that prevented him from being able to speak today, but he’s connected by phone and he’s listening in as best he can.
Hi, thank you. For the patients who are doing telemedicine, how do you best get them to sign a consent? Or do you just verbally document that they understand that a telemedicine appointment is limited because of lack of exam? I mean I think documented obviously in your note is helpful, but is there a form that you should also have them fill out?
I’ll defer that to Michael. There isn’t a specific telemedicine informed consent requirement, but from a legal perspective, how signing and executing that goes is outside of my purview. I can let either Michael or his team answer that question.
[Michael H. Cohen]
Okay. Yeah. Definitely you should have some consent. I mean, the same consent process that applies to physical meetings, applies in the sense that you should get informed consent. I don’t know if there’s a secret sauce language. I mean I don’t believe that statutes necessarily tell you exactly what to say, but you can figure it out. And we certainly recommend that our clients have language. We put language in, and essentially you’re telling people about the risks, benefits, and alternatives. The risks are kind of dated at this point. I mean, look, there was a risk that I wasn’t getting on a Zoom call because I just couldn’t get into Zoom. I mean it seems silly to say it these days, maybe even a little bit archaic, but it’s standard to say that the connection might not go through, but presumably really the issue is just to check off the box of consent.
Presumably the real issue is standard of care. So if you’re able to do what you can do at a distance, you make sure that you can, you’ve got your standard of care bases covered. And if you can’t, then you’ve got a standard of care issue. The consent I would say is more proforma and I would say necessary, but not sufficient. It definitely has some language that addresses risks, benefits, and alternatives to cover you so that nobody can come back and say that they didn’t get adequate informed consent.
Yeah. And I think wouldn’t it be beneficial to have that in writing too Michael, as opposed to verbal consent?
[Michael H. Cohen]
Yes. An informed consent is actually a verbal process that gets documented in writing. Most people think of it as a written process. It should be both. I was really… well, I was going to say I was shocked, but I mean I shouldn’t be shocked. It was revelatory to hear you say, Beracah, that if you’re practicing medicine to say we not licensed your insurance doesn’t cover you. That will make sense to me. And also we have a lot of doctors trying to practice as health coaches, they make sense to me. They’re also that your professional liability insurance doesn’t cover you for things that are not within your professional purview as a licensee. And so if you’re going to operate beyond state boundaries, you’ve got to be extremely cautious, not only with respect to your liability exposure and your exposure to the administrative licensing boards, but also on insurance prep. That was something that we hadn’t adequately considered before. Are there different kinds of insurance that your company would offer to help people with these kinds of gaps?
Yeah. I mean basically we have tailored telemedicine provider policies and we do things on a scalability level too. Because when you’re talking about having the full policy that I talked about earlier, that fills all the gaps in one policy. The starting price point is over $10,000. So some providers, if they’re just providing telemedicine services and they’re not doing the other things they may opt for putting together a malpractice policy, a general liability policy and a cyber-policy, they are separate but less expensive in lieu of the combined forum. I always recommend when people can afford it, that combined form is the way to go to fill all those gaps. Because we actually have a couple of carriers that offer all of those coverages in one policy.
[Michael H. Cohen]
And I just want to say, because I do want to end at 4:30 on the dot. I’m sorry I missed the introduction, but I hope everybody knows that Beracah is not just any insurance person. This is someone who is specialized in digital health, really is a leader in that space and knows this area very thoroughly. He has a background in life coaching. I don’t know if Aram mentioned that, but this is a man after my own heart, very holistic, integrative if you will. He combines all these different areas of knowledge and education already to truly help people from a heart centered, an intelligent place to find the best product.
So before he chimes in with a note of humility, now that I’ve built him up so much. I also want to say that, I don’t consider $10,000 expensive when it comes to insurance. Of course, if you’re just starting out, but then again, you’re going to need legal advice, insurance, you’re going to need accounting. You’re going to have more than a hobby if you’re going to take it seriously. And you’re exposed to enormous risks. You’ve got to have a huge belief in this and you’ve got to have an economic plan so that you can tackle expenses. I don’t know what is professional liability trends, just to practice medicine as compared to the Rolls-Royce policy, if you will, Beracah.
Yeah. It really depends on medical specialty and you are right, you definitely have oversold me. There are different options. And my goal is to try and match the appropriate client with the appropriate option and what their issues are as they’re starting a business and how they’re doing and when and where they’re doing it, making sure that they’re protected from the major risks that they have. But a lot of times it can be double. If you just did a malpractice policy, general liability with some cyber cover, it could be $5,000. And the total package could be $10-12,000 for a startup. That’s not a small amount of money to people. And I want to help people make all of those strategic decisions in their lives and in their business, and really work with what they have to find the optimal solutions. But agreeing with you that the more you can protect yourself from a capital perspective early on, the better it is for your long-term success as a business.
[Michael H. Cohen]
Yeah. Claims are no fun. And an insurance from my experience really is a matter of strategy. Just like we have legal strategy. You want to make sure that you cover your gaps, that you address your gaps. I think in some ways you can do that better as an insurance professional than a legal professional, because with us, there’s always some inherent ambiguity. It’s like Heisenberg’s uncertainty principle, the closer you get to the reality, the more you’re talking about probabilities of passive electrons and things of that order. Now I just want to say one of the reasons I built you up is because a lot of people look at your name and they thought they were going to have Barack Obama on the call.
They were so wrong.
[Michael H. Cohen]
Yeah. So then when they find out we’re going to talk about health insurance instead of health policy, I had to build this back up for them, but-
I totally agree with you. And people are probably sitting there on the phone thinking what a disappointment. I just got this insurance guy. I thought I was going to get some information on Michelle and Sasha and Malia, but unfortunately not today.
[Michael H. Cohen]
Exactly. Well, you can use your life coaching side to provide those insights on the next call. Right?
That’s right. That’s right. Before we wrap up, does anybody have any more questions? I know Nancy’s question was a great one. Does anybody else have more questions you want to ask?
[Michael H. Cohen]
And Beracah, also please let them know how to reach you. And I really encourage people to reach out and get more information. I think you’ve got tremendous resource to your disposal. So please let them know how to reach you. I’ll sign off in two minutes and thanks again for joining us today. Really appreciate your insights. Yeah.
Actually, it might be a question for Michael, just going back to the health coaching thing, I’m wondering where’s the line. For example, if I run a program, I’m an acupuncturist. If I run a program, it’s an information only program. Can I try and attract clients from across state lines or do I need to stay within my own state? And where’s the line between practicing telemedicine versus practicing information only, health coaching or something to that effect?
Yeah. Are you still there Michael? That is a great question.
[Michael H. Cohen]
Just really briefly, I’ll just say my piece and then we could probably talk for a long time, but licenses really for healthcare professionals really are state by state. And the reason is because of the 10th amendment, which grants to states the power to license people. And this came up early on in a very early case in the 1880s, it was Dent versus West Virginia. So then Dent argued that he didn’t need a license. He could practice whatever he wanted. I’ve had a lot of people over the years that have told me this and this amendment protects them at that. The Supreme Court basically said, no, the states have the power to grant or deny a license as they please.
And then after that, the state started fashioning licensure as to who could practice medicine, of course, acupuncture didn’t come along until the seventies after Nixon’s visit to China, when James Reston had an emergency appendectomy and they used acupuncture and they found it was effective. I mean typically you don’t see a lot of cases about this because I’m not quite sure what you have in mind. I’m not sure how you can assert needles at a distance-
Telemedicine, diet, and things like that.
[Michael H. Cohen]
Yeah. Another issue that you would come up with is the different scope of practice across each state. Again, a lot of it is what’s allowable, what’s not allowable. What raises enforcement hot buttons? Can you call yourself a coach? Again, it’s like insurance, there’s a spectrum of risk. My advice here tends to be more on the conservative side and that if you’re giving verbal advice in your license to give verbal advice, then certainly someone could say that you are practicing acupuncture because probably what you’re doing falls within the definition of the practice of acupuncture.
In some ways, you’re more at risk than someone who doesn’t have a license because you could be accused of unlicensed practice across state lines, whereas they would just say, well, I’m not really using Chinese names or Chinese theory of traditional Oriental medicine. Anybody can tell you that akinesia is good for your immune system, but even then, it depends on how risk averse you are, how far enforcement takes it. What’s on the radar. What the specific statute says, what else they’re looking at? Did anybody get injured? Why did it bubble up to attention? And all of these things are factors. And so it’s hard to predict.
One thing we do with our clients is we try to delineate what’s clinical, what’s not clinical, can we carve out a coaching practice? I mean, we do it. A lot of people want to do it. We do it with enormous caveats and we do the best we can to buffer people. There’s no magic potion here, but there’s good risk management like wearing a seatbelt, having an airbag, making sure your tires are not deflated below what is par, things like that. That’s a short answer to a complex question. If you need more, would you like more, please give us a call. It sounds like what you’re doing is unusual and we’d be glad in a more formal basis to help you navigate through that.
Great. Thank you.
[Michael H. Cohen]
This has been tremendous. And once again, I appreciate the … I give love to our guests, to Beracah from Marsh, and he’s our go to person for many insurance questions and particularly digital health.
Yeah. And Michael and his team are fantastic partners of ours too. He’s been doing this in the telemedicine space for more than 10 years, a long time, he knows it really well and is great at advising people. So I always defer people to Michael and his team as well as a great resource. Michael is also very humble about his credentials, but they’re longer than I can list in five minutes. I’m just blessed to be here and be a part of this with you and hope that this has added some value for all of you who are attending.
Thank you, Michael. And thank you, Beracah. Fantastic to have you joining us and we look forward to having you join us again soon.
Oh, Beracah. I think someone would like to know your contact information. I don’t know if you’ve shared that yet.
Yes, I can. The best way to reach me is just give me a call on my cell phone (619) 952-4005.
Fantastic. So while you’re typing that in, we thank our speakers, I’d also like to thank everyone who participated today. It wouldn’t be a community chat without the community, so we appreciate all of your time very much.
I would definitely recommend. I needed direction regarding the FDA and how the rules would affect my business. Responsive, accessible, and knowledgeable.
Impressive credentials are only overshadowed by their clear awareness of practical strategies to help Physicians navigate modern healthcare and achieve successful outcomes.