TELEHEALTH: THE FUTURE IS HERE!

Transcription

1 TELEHEALTH: THE FUTURE IS HERE! OPPORTUNITIES FOR CAPTIVES, TRADITIONAL INSURERS AND RISK MANAGEMENT PROFESSIONALS Paul Greve, J.D., RPLU Executive Vice President Willlis Healthcare Practice Gary Leonard Sr. Vice President Western Litigation Larry Smith Vice President, Risk Med Star Health President Greenspring Financial Insurance Insurance, Inc. of Cayman Angela Russell Managing Partner, Baltimore Wilson Elser Moskowitz Edelman & Dicker, LLP

2 TELEMEDICINE IN 2017: MANAGING THE RISK OVERVIEW Telemedicine and telehealth defined - PG Growth of telemedicine, new technologies PG Telemedicine, the Opportunity Legal and Regulatory Issues Liability Issues Risk Management Captives S2 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

3 TELEMEDICINE: NOT A NEW IDEA

4 TELEMEDICINE: INITIAL THOUGHTS Telemedicine is becoming much more accepted and widespread images are better / clearer Many think it is an extension of what physicians have always done Health insurers are increasingly accepting it/reimbursing for it - Medicare is slow to accept Billions are being invested in new digital telehealth technology. Health care executives are embracing it S4 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

5 TELEMEDICINE: TELEMEDICINE DEFINED The term telehealth is sometimes used The ATA considers it synonymous S5 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

6 TELEMEDICINE DEFINED The remote diagnosis and treatment of patients by means of telecommunications technology Competing definitions abound: ATA, CMS, etc. There is no set definition of telemedicine at present Very few states have defined it to date Some states exclude telephone consults from definition Not a distinct medical specialty S6 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

7 TELEMEDICINE: DEFINITION AMERICAN TELEMEDICINE ASSOCIATION (ATA) The use of medical information exchanged from one site to another via electronic communications for the health and education of the patient or health care provider and for the purposes of improving patient care, treatment and services. S7 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

8 TELEMEDICINE: DEFINITION CMS A two-way, real-time interactive communication between a patient and a physician or practitioner at a distant site through telecommunications equipment that includes, at a minimum, audio and visual equipment. Telemedicinemedicaid.gov By-The Topics/Delivery-Systems/Telemedicine html S8 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

9 TELEMEDICINE: ONE COMPONENT OF TELEHEALTH SPECTRUM Telehealth goes far beyond Internet sites and telephone numbers: It can also encompass: Data storage and review Images, video, clinical data Assessment: Scanners, tricorders Communication/Education Apps and portals Telemedicine Real-time care delivery Kiosks, video and virtual visits Monitoring Glucometers, scales and Wearables S9 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

10 TELEMEDICINE: MODALITIES Real Time Interactive Services Live, two-way interaction between a patient and a health care provider using audiovisual technology S10 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

11 TELEMEDICINE: MODALITIES Remote Monitoring Technology Collection of a patient s personal health and medical data via electronic communication technologies. Once collected, the data is transmitted to a provider at another location S11 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

12 TELEMEDICINE: MODALITIES Store-and-Forward Transmission of a patient s recorded health history through a secure electronic communication system to a health care provider S12 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

13 TELEMEDICINE: MODALITIES mhealth Wearable devices/smart phones to track health and wellness S13 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

14 TELEMEDICINE: THE OPPORTUNITY Access Appropriate setting Cost-effective Consumer-oriented Convenient S14 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

15 TELEMEDICINE: THE OPPORTUNITY MORE HEALTH SYSTEMS ARE OFFERING TELEMEDICINE Many institutions have or are creating systems Between 40% and 50% of all hospitals in the United States currently employ some form of telehealth. (HHS Report To Congress: E-Health and Telemedicine, 8/12/16) Some put that percentage higher, e.g. 72%, a survey of 280 health care execs by Avizia in March 2016 as published in the WSJ 6/27/16 S15 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

16 TELEMEDICINE: THE OPPORTUNITY REIMBURSEMENT IS KEY 29 States and D.C. mandate health insurer reimbursement for some telemedicine services* Medicare reimbursement is still restrictive but some movement in 2017, especially for rural Medicaid reimbursement more closely follows private insurers in willingness to reimburse Most major commercial health insurers are now offering various telehealth benefits * S16 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

17 TELEMEDICINE: THE OPPORTUNITY OFFER RATES Employers Offering Telemedicine S17 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

18 TELEMEDICINE: THE OPPORTUNITY Patient acceptance and improved technology The use of current telemedicine tools could displace: *Willis Towers Watson analysis of MarketScan data. S18 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

19 TELEMEDICINE: SPECIALIZATION Examples Teleradiology Primary Care/Specialist Consultation Skype Chat Video Chat TeleStroke TelePsych / Behavioral Health Connected Otoscopes: Ear Exams Connected BP Monitors Remote Cardiac Monitoring Kiosks for Telemedicine in Retail Settings S19 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

20 TELEMEDICINE Telemedicine Advantages Access Appropriate setting Cost-effective Consumer-oriented Convenient S20 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

21 LEGAL AND REGULATORY ISSUES Telemedicine: Regulatory Risks Licensure of the physician providing services is essential Lack of state consistency here is a huge challenge but one must know the laws before proceeding Not all states laws address telemedicine but many do Any act of diagnosing or recommending care is generally considered the practice of medicine Some states have special telemedicine licensing even for in-state functions; others require full medical licensure Most states medical boards offer a common consultation exception (exempting from licensure) that may apply to telemedicine scenarios S21 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

22 LEGAL AND REGULATORY ISSUES Other types of licensing exemptions that may apply across all the states Emergency exceptions (e.g. patient coding) Consultation exceptions (scope varies) Special/temporary telemedicine license License endorsement (reciprocity from other state medical boards) Other State Regulation of Telemedicine May Apply Informed consent Privacy Medical records Credentialing Many more: quality, standard of care, etc. This is a rapidly evolving area of state regulation S22 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

23 LEGAL AND REGULATORY ISSUES Telemedicine Across State Lines: Which State Laws Apply? Usual answer for tort law: where the patient is when receiving care But jurisdiction can be problematic; not really tested But whether there is a state standard of care or a local standard of care may vary No case law yet in a court of last resort on requiring a foreign physician to know what the practice is by state or locality Source: Joseph P. McMenamin, M.D., J.D. McMenamin Law Offices, PLLC joe.mcmenamin@venebio.com S23 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

24 LEGAL AND REGULATORY ISSUES Telemedicine: Scope of Practice and Risk Is there a valid physician-patient relationship thru telemedicine? Is the provider required to conduct an in-person exam? What limitations are there in making a diagnosis or plan of treatment during a telemedicine encounter? Is the provider using remote monitoring, mobile telemedicine, or Internet-connected medical devices (e.g. BP monitor)? Will the provider issue a remote prescription? If prescribing is remote, any restrictions on types of meds (opioids, etc.)? S24 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

25 TELEMEDICINE: LIABILITY ISSUES Potential Malpractice Liability Jurisdiction is problematic: across state lines or international Standard of care may vary by venue Reform laws may differ, e.g. damage caps Statute of limitations may vary, e.g. minors The hospital or other entity has a corporate legal duty to credential all telemedicine providers if originating site May need to create a category for this under medical staff bylaws Bylaws may need to take into account state laws, CMS, JCAHO, and other guidelines S25 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

26 TELEMEDICINE: LIABILITY ISSUES Potential Malpractice Liability Negligent credentialing/privileging Hospital have a corporate legal duty to credential all providers; also CMS and Joint Commission requirements here Networks, ACOS, have a credentialing obligation Is there a true doctor-patient relationship? Inadequate/negligent telemedicine consult Failure to obtain a telemedicine consult Ostensible agency liability Equipment malfunction/software failure S26 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

27 TELEMEDICINE: LIABILITY ISSUES Potential Malpractice Liability Lack of an informed consent that discloses the limits of a telemedicine consult Practicing outside clinical practice protocols or guidelines promulgated by various entities, such as ATA or medical specialties S27 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

28 TELEMEDICINE: LIABILITY ISSUES Continuity of Care Documentation of telemedicine encounters must occur in the medical record Choice of the best clinical context for a telemedicine encounter is key: e.g. acute primary care, chronic disease, psychiatry, but probably not trauma or surgical advice where bedside assessment is what is really required S28 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

29 TELEMEDICINE: LIABILITY ISSUES Telemedicine Malpractice Cases to Date Very little known about the cases that have occurred: settled/dismissed PIAA: reported out of 300,000 total One large national physician carrier anecdotally said they have had 6 telemedicine cases out of 12,000 cases filed over the last six years but telemedicine was not a true focal point in any Many cases to date are teleradiology cases S29 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

30 TELEMEDICINE: LIABILITY ISSUES Telemedicine Malpractice Cases to Date: Allegations Incorrect interpretations of images from home or remote (radiology) Miscommunication over the timeliness of the reading; e.g. stat reading requested but not done Failure to communicate presenting symptoms to a remote examining neuro-radiologist and resulting failure to diagnose Incorrect interpretation of remote reading of EFM strips S30 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

31 TELEMEDICINE: LIABILITY ISSUES Telemedicine Malpractice Cases to Date: Allegations Suspected stroke incorrectly diagnosed by a tele-stroke consult Failure to adequately remotely monitor and assess an ICU patient and failure to request an intensivist to perform a more thorough bedside examination S31 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

32 RISK MANAGEMENT Liability Risks - Risk Management Develop appropriate telemedicine protocols Peer Review/Credentialing Informed Consent The Patient Encounter Documentation Staff training and roles defined Monitor the literature Research all state/federal laws and accrediting entities: CMS, JCAHO, others Physician extenders must practice within their state s defined scope Provide services only where appropriately licensed Some specialties have telemedicine guidelines American Telemedicine Association may provide guidance S32 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

33 RISK MANAGEMENT Develop Informed Consent Protocols Discuss the risk of the care as well as the risks of telemedicine Research any specific state laws on telemedicine informed consent Develop Patient Encounter Protocols Avoid if a physical exam is key Set low threshold for requiring physical exam Document encounter and patient comprehension Create written patient instructions Address follow-up care Information to patient s PCP: continuity of care S33 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

34 RISK MANAGEMENT Develop Documentation Protocols Mode of service delivery Sites that were linked Attendee names Any technical difficulties S34 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

35 RISK MANAGEMENT Insurance Issues Discuss insurance coverage with current carrier Address exposures often not covered in a physician medical professional policy: errors & omissions negligent credentialing privacy breaches/cyber liability failure of equipment/products liability Options: endorsement or new separate policy for telemedicine exposures S35 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

36 WHERE DO CAPTIVES FIT IN? Opportunities for Captives: Enhanced creativity and forward thinking Same cost savings for small and medium size organizations that larger organizations enjoy Industry quickly expanding S36 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

37 A CHECKLIST FOR CAPTIVES Be mindful of the following.. Data Breaches Cyber risk Privacy Issues Malpractice complexities (i.e. technology vs healthcare) Exposures across state lines Exposures outside of the U.S. S37 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

38 A CHECKLIST FOR CAPTIVES And beware of. Credentialing and licensing issues Adherence to National Standards: i.e. ATA Adherence to Practice Specific Standards: ACI/ASEP S38 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS

39 QUESTIONS & ANSWERS S39 TELEMEDICINE TRENDS IN 2017: MANAGING THE RISKS