Minimizing Risk When Practicing Telemedicine

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Minimizing your risk when practicing telemedicineFirst, potential telemedicine providers need to understand what legal limits apply. Many states impose requirements on the treatment of patients. Therefore, it is critical that providers understand all applicable legal limits.

Establish Licensure

Having established the parameters of the telemedicine practice, providers must also ensure that they hold the proper medical licenses.

Because telemedicine permits the treating provider and the patient to be in different locations, and, in many instances, in different states, there is the question as to where the provider must be licensed in order to properly treat the patient via telemedicine. Although there are some efforts in Congress to allow a physician licensed in one state to treat a patient in another state, state laws generally require a physician treating a patient via telemedicine to be licensed by the medical board of the state where the patient resides.

The Interstate Medical Licensure Compact allows a physician licensed in one of the 11 compact states to become licensed in the other states through a streamlined process.

Conform to Standards of Care

A telemedicine provider must conform to the standard of care applicable and equivalent to what is expected for in-person care as appropriate to the patient’s age and presenting condition.

Many times, in order to correctly diagnose and treat the patient, the telemedicine provider will need to use diagnostic testing, through the use of peripheral devices appropriate to the patient’s condition.

There is still the question of which standard of care the telemedicine provider must meet. Typically, the provider would be held to the standard of care of the community where he or she practices. However, courts have increasingly recognized standards promulgated by associations such as the American Telemedicine Association as the appropriate standard of care for telemedicine encounters, even if it conflicts with the provider’s local standard of care.

Inquire about Malpractice Coverage

Providers should also check their malpractice insurance coverage. Many providers assume incorrectly that their current professional liability insurance coverage will extend to cover their practice of telemedicine since it is an extension of their current medical practice. However, most professional liability insurance coverage will exclude coverage for telemedicine services. Providers should work with their insurance brokers to secure separate professional liability insurance coverage for telemedicine.

Communicate with Patients

Providers should ensure that patients understand the risks, such as a power failure that could cause a loss of communication or a loss of records, and potential exposure of medical records to outside hackers. This discussion can minimize potential issues that may arise.

Paul D. Squire, JD, is a senior attorney at Garfunkel Wild, P.C., in Great Neck, New York, and former general counsel for Teladoc. Send technology questions to medec@advanstar.com.

Related: Integrating telemedicine into your practice

Growing your Practice with Technology

By Marlene M. Maheu, PhD, from Ethics & Risk Management: Expert Tips VII

Vague Standards, Guidelines, Laws Create Telepsychology Risks

As a psychologist who’s been researching/writing/practicing/consulting/training online for years, I’m often asked, “Where can psychologists get guidance and training for practicing online?”

Vague Standards, Guidelines, Laws Create Telepsychology RisksJust as frequently, I encounter well-intentioned, ethical colleagues who blithely undertake an online practice without considering their legal and ethical obligations or competencies. In hopes of helping readers avoid many potential landmines, I’ll outline how current guidelines, ethical standards and state regulations can be used to help you avoid trouble and reap long-term benefits of growing your practice with technology.

Professional Guidelines

A joint task force of representatives of the American Psychological Association, the American Psychological Association Insurance Trust and the Association of State and Provincial Psychology Boards has developed telepsychology guidelines.

Guidelines developed by other professional associations can be of benefit to psychologists, but state regulations and guidelines of licensure also must be taken into consideration.

Despite the proliferation of health care technology in the last two decades, including the Internet, many professional associations have struggled to allocate the needed resources to develop clear and timely practice standards or guidelines. Even when they have been clear, many fail to address the current range of technology used in behavioral practice.

Vague Standards, Guidelines, Laws Create Telepsychology RisksFor instance, they might refer to telecommunication technologies for direct care, but neglect the rapid expansion of services delivered as psycho-educational products online, text messaging, virtual reality, robotics, mobile health (mhealth) such as “apps” used with smart devices and other areas.

Some associations are making significant progress; others have barely begun. A number of psychologists are attempting to form a new APA division to address the growing areas that need to be expanded in the definition of psychology and grow the association with vibrant new ideas and enthusiasm.

See the many areas of focus addressed by the proposed Society for Technology and Psychology (http://stp-apa.net) and consider how they are changing traditional in-person care. (Support this movement by signing the petition for inclusion in the APA.)

Even though technology may be outstripping the abilities of professional associations to “keep up,” associations have a responsibility to “catch up.” While many countries are far ahead of the U.S.-based professional associations in both the timeliness and scope of their standards, guidelines or statements of best practice, the following are available online for the psychologist looking for immediate guidance:


For a regularly updated list of currently published standards, guidelines and best practices in behavioral telehealth and telemental health, see Telemental Health Standards, Guidelines and Statements: http://telehealth.org/ethical-statements.

Keep Up On State Laws, Regulations

Despite the best research on recommended standards for the use of technology in psychology, practitioners must also carefully consider the strictures of state licensing regulations.

Licenses are awarded by states and therefore their scopes of practice are defined by the specific states(s) of licensure. Federal laws exempt military and federal government practitioners but otherwise state licensing laws define professional work. From one state to another, laws and regulations can differ substantially, be contradictory or outdated in terms of application to online practice. A number of states are working on updating regulations but they are moving forward in a hodgepodge and piecemeal manner rather than a unified plan. Potential penalties for violating licensing laws include fines, community service, public humiliation or suspension of licensure. In some states, certain laws can be considered “criminal offenses” and lead to the forfeiture of malpractice benefits. Examples include insurance fraud or treating a client in a state where the psychologist is not licensed.

Many psychologists fail to understand that being licensed in one state does not grant them the right to practice in another state or the repercussions of making such uninformed decisions. For example, Vermont and Utah carry $5,000 fines for practicing in their states without a license. Disengaging from treatment with remote clients after learning of such regulatory laws can also create thorny clinical dilemmas.

Role of Professional Associations

In addition to other benefits, professional associations can try to intervene to influence state law. They also typically develop and publish ethical standards and guidelines that not only require that a practitioner adhere to state and federal law but the association’s own rules. Ethical standards are the most stringent and are mandatory. They outline appropriate behavior and set the bar for membership.

For professional associations and practitioners alike, keeping abreast of technological demands is important because an existing set of standards, whether outdated or current, creates a standard of due care.

This Standard in Turn Helps Define Malpractice

Similarly, if professionals do not adhere to standards accepted by their national association, they may be responsible for malpractice in tort. Therefore, it is incumbent upon the elected and staff leaders of professional associations to allocate the needed resources to develop adequate standards and guidelines to protect practitioners in a timely manner. The penalty for failing to adhere to a set of standards is most often censorship or removal from the association.

Guidelines, on the other hand, are aspirational and therefore not required. They usually involve a distillation of the relevant literature and provide guidance in the form of suggestions. But, in many states aspirational guidelines by psychological association are incorporated by reference into licensing regulations and have a long history of being used by prosecutors to establish negligence on the part of practitioners.

Professionals, then, may want to be mindful of and carefully document any departure from both standards and guidelines issued by professional associations. If they don’t agree with standards or guidelines as promulgated by any professional association, they can work within the association to change them or leave the association.

The Challenge

Practitioners attempting to operate innovative technology-based programs within the bounds of vague or outdated ethical standards and guidelines are at risk of being at a distinct disadvantage before an equally vague or outdated licensing board or jury. Unclear standards, guidelines and regulatory law leave the innovative practitioner with many opportunities but not enough direction. Formal professional training is warranted to help forward-thinking psychologists access the strong evidence base that reflects reliable approaches to risk management.

Ethics and Risk Management: Expert Tips VII is a 3-hour online continuing education (CE/CEU) course that addresses a variety of ethics and risk management topics in psychotherapy practice in the form of 22 archived articles from The National Psychologist and is intended for psychotherapists of all specialties.

Professional Development Resources is approved to offer continuing education by the American Psychological Association (APA); the National Board of Certified Counselors (NBCC); the Association of Social Work Boards (ASWB); the American Occupational Therapy Association (AOTA); the American Speech-Language-Hearing Association (ASHA); the Commission on Dietetic Registration (CDR); the California Board of Behavioral Sciences; the Florida Boards of Social Work, Mental Health Counseling and Marriage and Family Therapy, Psychology & School Psychology, Dietetics & Nutrition, Speech-Language Pathology and Audiology, and Occupational Therapy Practice; the Ohio Counselor, Social Worker & MFT Board; the South Carolina Board of Professional Counselors & MFTs; and by the Texas Board of Examiners of Marriage & Family Therapists and State Board of Social Worker Examiners.