Using Telemedicine for the Good Faith Exam

August 16, 2021

This article was originally published on the Access+ portal for ByrdAdatto Access+ members.   Enjoy this free access to learn more about using telemedicine for the good faith exam.

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 way possible to perform the initial patient consultations, commonly referred to as the good faith exams (“GFE”). 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 GFE 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 referred to by some states) is the provision of health care services using telecommunication means (as in FaceTime or Skype) 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. NPs and PAs) may perform the GFE. It is also important to understand that each state has its own set of telemedicine laws; some states are still silent 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 healthcare access to patients. Staffing is a challenge in an elective medicine practice.  Physicians and mid-level providers are often providing non-clinic related services (like surgery) or are part time in these types of facilities.  Telemedicine does not require the physician or mid-level providers to physically see a patient at the facility before the patient can be 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, the biggest draw under current circumstances is the ability to navigate certain COVID-19 restrictions by allowing practices to utilize telemedicine to minimize patient interaction upon reopening.

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 the 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 in order to provide medical services through telemedicine.

In addition to state laws, telemedicine is also 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 states’ right to their medical information also applies to telemedicine interactions. Therefore, practices must abide by 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 as well as its providers up to be in a good position once the emergency orders and regulations are lifted and no longer apply (i.e. 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 med spas with a much-needed alternative to interacting 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.  At ByrdAdatto we are working hard to ensure our clients are well equipped and ready for operating their business. If you have questions regarding this article, reach out to info@byrdadatto.com.

ByrdAdatto founding partner Brad Adatto

Bradford E. Adatto

Brad decided to become a lawyer during sixth-grade Career Day, when he promised to represent his best friend, a future doctor. A few decades later, he started his own law firm that focused on representing health care and corporate clients.