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Legal considerations

Here we’ve summarized a few of the legal considerations for providing telehealth and provided resources for additional information.

During the COVID-19 Public Health Emergency, the federal government and many state governments have taken steps to make it easier to implement and access telehealth. Read about the COVID-19 related policy changes.

Protecting patient health information

Cybersecurity

Electronic health records are often targeted by malware and hackers. These resources can help you ensure that you’re taking the necessary steps to protect patients’ health information:

HIPAA compliance

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) ensures that health care providers protect patients’ personal health information. When we’re not in the COVID-19 Public Health Emergency, all of the telehealth services you provide need to be in compliance with HIPAA rules.

HIPAA flexibility during the COVID-19 Public Health Emergency

The U.S. Department of Health and Human Services Office for Civil Rights issued a Notification of Enforcement Discretion to empower covered health care providers to use widely available communications applications without the risk of penalties imposed by the U.S. Department of Health and Human Services Office for Civil Rights for violations of HIPAA rules for the good faith provision of telehealth services. For more information, read FAQs on Telehealth and HIPAA during the COVID-19 nationwide public health emergency (PDF) or visit HIPAA and COVID-19.

While the U.S. Department of Health and Human Services Office for Civil Rights has issued a notice of enforcement discretion to waive HIPAA penalties, the State Attorney Generals have not issued the same notices. Under Sec. 13410(e) of the HITECH Act, State Attorney Generals are permitted to obtain civil money penalties on behalf of state residents for HIPAA violations. You should check with any applicable states to see if they have also waived these penalties.

While specific informed consent laws vary by state, these common sense actions are always a good idea:

  • When you meet with a patient, explain what they can expect from the telehealth visit and what their rights are.
  • Check in with the patient about their responsibilities during a telehealth visit — for example, they need to be aware of privacy on their end.
  • If there’s anyone observing the visit, tell the patient and get their consent at the start.

For more about consent:

Protecting yourself from liability and malpractice

Before you offer telehealth:

  • Check with your insurance company to make sure they cover telehealth. In some cases, liability insurance will already cover it, and in others, you may need to purchase supplemental coverage.
  • If you plan to offer telehealth in more than one state, you’ll need to confirm that your insurance policy covers you for all locations.
  • You’ll also want to be aware of any state laws that regulate how you collect and store protected health information. To find out more about the state laws where you practice, visit State Health Care Law exit disclaimer icon .

For more information on legal considerations:

State laws, licensure, and actions

State laws and actions in response to COVID-19

States have been taking action to facilitate telehealth during COVID-19. These actions are different from state to state and may include:

  • Waiving state licensure bans
  • Providing onramps for recently retired physicians to practice telehealth
  • Expanded scope of practice
  • Expanding telehealth coverage for Medicaid recipients

Several states are modifying licensure requirements/renewals for physicians. See below resources from Federation of State Medical Boards for details:

For emerging updates to information about state changes, see COVID-19 Related State Actions exit disclaimer icon from the Center for Connected Health Policy or State Telehealth and Licensure Expansion COVID-19 Dashboard exit disclaimer icon from the Alliance for Connected Care.

State laws prior to COVID-19 Public Health Emergency

Current State Laws & Reimbursement Policies exit disclaimer icon — from the Center for Connected Health Policy, funded by HRSA, helps you stay informed about telehealth-related laws, regulations and Medicaid programs at the state level granularity using a map search option. It covers laws and regulations for all fifty states and the District of Columbia.

Compacts

The Federation of State Medical Boards exit disclaimer icon supports the Interstate Medical Licensure Compact exit disclaimer icon , which is an agreement among 29 participating U.S. states to work together to significantly streamline the licensing process for physicians who want to practice in multiple states, particularly to help provide remote health care. It offers a voluntary, expedited pathway to licensure for physicians who qualify.

The Association of State and Provincial Psychology Boards exit disclaimer icon supports PSYPACT exit disclaimer icon (Psychology Interjurisdictional Compact), which is an interstate compact designed to allow licensed psychologists to practice telepsychology and conduct temporary in-person face-to-face practice of psychology across state boundaries legally and ethically without necessitating that an individual become licensed in every state to practice.

Last updated: July 7, 2020