W&B COVID-19 Update: How Do You Obtain Informed Consent for a Telehealth Visit?

With the ongoing COVID-19 pandemic, telehealth visits are on the rise. As in face-to-face visits, it’s vitally important for patients to have full knowledge of the possible risks, benefits, alternatives, and for you to obtain informed consent.

How is this done, in a virtual world?

We recommend having the informed consent discussion during a telehealth visit with the patient and the appropriate provider. As usual, this discussion should be documented in the patient’s medical record, and the patient should sign a consent form.

Where possible, the consent form should be witnessed by a qualified staff member. This can be done via the patient portal, or with any app, such as Zoom, GoToMeeting, Microsoft Teams, or the health systems’ own software, which permits screen-sharing. Using common technology, the provider or staff member can personally witness the patient signing in real-time.

Best practices vary by situation. For example, when a telehealth visit occurs prior to a procedure, have the patient sign the consent form in person on the day of the procedure.

The Maryland Board of Physicians has also proposed guidelines for obtaining informed consent for a telehealth visit. The most recent draft informed consent recommendations (not yet adopted) for telehealth visits include:

  • A description of the telehealth modality used by the telehealth practitioner;
  • An acknowledgement that the telehealth practitioner may determine that telehealth is not clinically appropriate and request that a patient come for an in-person encounter;
  • A description of telehealth privacy risks, and the telehealth practitioner’s data breach policy, including the requirement to timely inform the patient of a data breach and inform the patient of the steps being taken to remediate the problem;
  • A statement informing the patient that the patient may exclude anyone from any site during the telehealth service;
  • A statement informing patients that they can decline telehealth service at any time without affecting their right to future care or treatment and that the patients can terminate the telehealth encounter at any time; and
  • An authorization to record the telehealth encounter and maintain and store the recording in accordance with medical retention requirements under state and federal law, if the practitioner records the telehealth encounter.

If adopted, these provisions would be among the most extensive telehealth consent requirements in the country. When the Board considers its next recommendations, it might be reasonable to trim them back or eliminate them entirely.

For more information on telehealth and telemedicine, go to the Maryland Health Care Commission’s Telehealth Virtual Resource Center and sample webinars.

We hope you find this helpful in your telehealth practice. If you have any additional questions on obtaining informed consent for telehealth visits, please contact us.

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During this crisis, Waranch & Brown has been preparing for the defense of COVID-19 cases on behalf of our clients. We are collecting and updating guidelines and protocols and assembling a first-rate team of medical experts, ethicists, epidemiologist and virologists. And we are studying the research and relevant materials to take full advantage of any immunities or good faith protection for our healthcare providers.

Waranch & Brown has been on the forefront of the defense of healthcare providers for over 20 years. Through COVID-19, and all its repercussions, we will stay by your side.

If we can assist or advise in any way, please feel free to contact our COVID-19 team leader John T. Sly, Esq., or any member of the firm.

John T. Sly

John T. Sly

John T. Sly is a trial attorney and partner at Waranch & Brown. His practice focuses on the aggressive defense of physicians, health care facilities, and other businesses throughout Maryland. He has successfully tried to verdict numerous high-dollar cases and has argued before state and federal appellate courts.
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