How To Use Telemedicine for the Good Faith Exam

Posted By Madilyn Moeller, Tuesday, August 24, 2021

Doctor with stethoscope reaches out through the laptop screen

By Bradford E. Adatto, JD, Partner, ByrdAdatto

Even before a global pandemic forced businesses to come up with creative solutions to address health concerns, elective medicine practices and providers were trying to find the most efficient and effective possible ways to perform initial patient consultations, commonly referred to as good faith exams (GFEs). This problem affected a wide swath of elective-health-care-meets-retail-type medical practices, including medical spas, weight loss centers, IV hydration bars, wellness centers and anti-aging centers. Enter the possible solution to these concerns: telemedicine. Ironically, performing GFEs via telemedicine has become an even more viable solution now that minimizing face-to-face interaction is critical to flatten the curve and prevent the spread of COVID-19.

Before jumping into how telemedicine can solve the GFE conundrum, it is important to understand what exactly is considered telemedicine. Generally, telemedicine (or telehealth, as some states refer to it) is the provision of health care services using telecommunication means (FaceTime or Skype, for example) by a health care practitioner who is in one location to a patient located in another place; the different location can be anywhere from simply another building to another city or state. Basically, it means the provider and patient are not in the same room seeing each other face to face. It is important to note that the general rule is, only physicians or mid-level practitioners—i.e., nurse practitioners (NPs) and physician assistants (PAs)—may perform the GFE. It also is important to understand that each state has its own set of telemedicine laws; some states have yet to comment on the matter. Regardless, this means that telemedicine compliance varies state to state.

There are important benefits to using telemedicine in an elective medicine practice setting in addition to easing health care access to patients. Staffing is a challenge in an elective medicine practice. Physicians and mid-level providers often provide non-clinic-related services (such as surgery) or are part-time in these types of facilities. Telemedicine allows the physician or mid-level providers to be away from the facility and still see the patient before they are treated. Therefore, the practice does not have to pay more for the time a provider would normally be spending at the facility's physical location of the spa. Additionally, it offers providers the ability to navigate certain COVID-19 restrictions by minimizing patient interaction upon re-opening.

As alluded to above, state laws determine the regulations for the following considerations: standard of care, informed consent, medical records and technology. Providers using telemedicine to provide medical services, including aesthetic medical services, are held to the same standard of care that would apply to the provision of medical services if they were offered in an in-person setting. This means the provider must, at a minimum, establish a valid provider-patient relationship, have appropriate state licensure or certification, obtain appropriate informed consent, document and maintain accurate patient medical records, and abide by patient and medical record confidentiality standards required by state and federal law. A key aspect of establishing the provider-patient relationship and meeting the standard of care is performing a proper initial consultation and performing a GFE via telemedicine prior to providing medical services to the patient. The specifics may vary from state to state, but many states do not require a face-to-face evaluation to provide medical services through telemedicine.

In addition to state laws, telemedicine also is subject to federal reimbursement, patient privacy and confidentiality laws. When utilizing telemedicine for the GFE, providers are held to the same laws regarding the confidentiality of health care information. Additionally, a patient's federal and state right to their medical information also applies to telemedicine interactions. Therefore, practices must respect the HIPAA patient privacy standard of care that the medical community has come to know and love.

Practices and providers have likely been made aware that the patient privacy standard of care has been relaxed during the COVID-19 pandemic. However, it would be in a practice's best interest to follow all HIPAA privacy laws as though there is not a pandemic wreaking havoc across the planet so that it sets itself and its providers up to be in a good position once the emergency orders and regulations are lifted and no longer apply (i.e., there is no more relaxed standard of care). While most states still require that delegating providers be immediately available by phone while the treatment is being performed, telemedicine certainly makes it easy to initiate the GFE and provides practice and medical spas with a much-needed alternative to interacting with patients during these uncertain times.

Telemedicine can be an amazing tool to solve the GFE. Like most aspects of health care, this is heavily regulated on a state-by-state basis. Compliance remains critical.

AmSpa members receive a complimentary 20-minute Introductory Compliance Assessment with a ByrdAdatto attorney. Click here to learn how to join AmSpa today!

Bradford E. Adatto is a partner at ByrdAdatto, a national business and health care boutique law firm with offices in Dallas and Chicago. His background is in regulatory, transactional and securities law. Having worked in health care law his entire career, he has an in-depth knowledge of the "dos and don'ts" of this heavily regulated industry. Brad has worked with physicians, physician groups, and other medical service providers in developing ambulatory surgical centers, in-office and freestanding ancillary service facilities, and other medical joint ventures. He regularly counsels clients with respect to federal and state health care regulations that impact investments, transactions and contract terms, including Medicare fraud and abuse, antitrust, anti-kickback, anti-referral, and private securities laws.

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