Informed Consents for Telemedicine: What To Know In Your State
In-person patients usually complete a stack of paperwork prior to their first visit and again at set intervals throughout the patient’s time with the practice. The consents that are completed at that time provide important protection for the provider and give the patient valuable information about the services that they are about to receive, storage of patient records, explicit patient consent policies, and more. These patient consent forms are just as important for telehealth, and some states actually require a specialized telemedicine paitent informed consent form prior to treatment.
The laws vary drastically by state, but informed consents for telehealth are a good practice whether they’re required or not. There are a lot of good examples throughout the web of what should be included in your informed consent. If you work with a seasoned platform partner like Mend, those consents are already included in your licensing fee, and we can customize them to your needs.
What is a Telehealth Informed Consent?
An Informed Consent explains the services that the provider offers as well as the risks and benefits associated with that treatment. A telehealth informed consent does the same, but it also focuses on ensuring that the patient understands the medium through which care is going to be delivered as well as the limitations of the treatment provided via telemedicine.
What Should My Informed Consent Include?
You’ll want to explain what telemedicine is, who provides telemedicine services, who the telemedicine provider is, and what information may be shared over telemedicine. Most informed consents include an explanation of the type of technology that is being used and the different ways that patients can use it. You can list the benefits of telehealth, but you will also want to list the possible risks and what the patient should do in the event of an emergency.
Next, the patient consent portion of the document explains that the patient is consenting to remote treatment and explains that this treatment is voluntary. There should be a discussion of state and federal law and an acknowledgement that the patient is aware that these services are delivered in compliance with those laws.
The American Telemedicine Association’s Practice Guidelines for Live, On-Demand Primary Urgent Care, includes an extensive list of what the patient should be informed of prior to or during the telemedicine visit. They recommend informing the patient about the nature of the visit, the timing of the service and the record keeping methods. They also encourage telemedicine providers to discuss:
- Scheduling
- Privacy/security measures
- Potential risks
- Mandatory reporting requirements
- Credentials of care tear
- Billing arrangements
- Limits to confidentiality
- Explicit emergency plan
- Storage of patient information and potential for technical failure
- Procedures for coordinating care
- Protocols for contact between visits
- Prescribing policies (including local and federal regulations)
- Conditions where telemedicine should be terminated for in-person care
Mend supplies sample patient consent forms that can be used as-is or edited to the needs of the organization. When choosing a patient consent form for treatment, ensure it was written by a reputable source or have one drafted by your counsel.
State-by-State Breakdown
Informed consents vary by location and provider, and each state may have a different requirement of what needs to be stated in the consent. Below, is a state-by-state breakdown of informed consent requirements. The information provided was supplied by the Center For Connected Health Policy at cchpca.org. It was up-to-date at the time this article was published, but be sure to check for updated legislation pertaining to your state.
Alabama- Written informed consent required for Medicaid patients.
Alaska- The law does not specify any guidelines on informed consent.
Arizona- Written or oral consent required for all patients. Oral consent should be documented in the patient record. Medicaid requires written consent if a recording is made.
Arkansas- Providers are required to follow applicable state and federal laws, but there is no specific requirement for informed consent.
California- Written or oral consent required for all patients. Oral consent should be documented in the patient record.
Colorado- Providers are required to issue a written consent to the patient that explicitly states: “1) The patient may refuse telemedicine services at any time, without loss or withdrawal of treatment;
2) All applicable confidentiality protections shall apply to the services;
3) The patient shall have access to all medical information from the services, under state law.”
Connecticut- The provider should verbally disclose information to the patient regarding limitations of treatment and treatment information, and he or she should obtain verbal consent during the visit.
Delaware- The law specifies that the provider must have informed consent to treat via telemedicine, but it does not require it be a written consent. Medicaid rules state that the patient must consent to telehealth, and this consent can be obtained by either the referring, consulting or distant site provider.
Florida- The law does not specify any guidelines on informed consent.
Georgia- Medicaid requires written informed consent prior to the telemedicine visit.
Hawaii- The law does not specify any guidelines on informed consent.
Idaho- State law specifies that consent must be obtained from the patient. The Medicaid program specifies that the written informed consent is required.
Illinois- The law does not specify any guidelines on informed consent.
Indiana- State law specifies that the provider is not required to maintain a separate informed consent, though Medicaid law requires that the spoke site must obtain consent and both sites must maintain it.
Iowa- State law does not specify any guidelines on informed consent.
Kansas- State law does not specific any guidelines on informed consent, but the Medicaid program specifies that consent must be obtained for telehealth home services.
Kentucky: State law specifies that informed consent must be obtained by physicians, chiropractors, nurses, dentists, dieticians, pharmacists, psychologists, occupational therapists, behavioral analysts, physical therapists, speech language pathologist/audiologists, social workers, and marriage and family therapists. The law does not specify how the consent should be obtained.
Louisiana- Regulations indicate that the provider must inform the patient about the relationship of the patient and provider as well as any other providers who are involved in the care. The patient may decline telemedicine treatment.
Maine- Maine regulation and Medicaid specify:
“Providers must deliver written educational information to patients at their visit.
This information should be written at a sixth-grade comprehension level, and include the following:
- Description of the telehealth equipment and what to expect;
- Explanation that the use of telehealth for this service is voluntary;
- Explanation that the member is able to stop the telehealth visit at any time and request a face-to-face service;
- Explanation that MaineCare will pay for transportation to a distant appointment if needed;
- Explanation that the Member will have access to all information resulting from the telehealth service provided by law;
- HIPAA compliance information regarding the telehealth encounter;
- Informed of all parties who will be present at the receiving and originating site and have the right to exclude anyone from either site; and
- Member has the right to object to videotaping or other recording of consult.”
Maryland- Informed consent requires that the provider, “inform patients and consultants of the following:
- The inability to have direct, physical contact with the patient is a primary difference between telehealth and direct in-person service delivery;
- The knowledge, experiences, and qualifications of the consultant providing data and information to the provider of the telehealth services need not be completely known to and understood by the provider;
- The quality of transmitted data may affect the quality of services provided by the provider;
- That changes in the environment and test conditions could be impossible to make during delivery of telehealth services; Telehealth services may not be provided by correspondence only.”
Medicaid rules state that the originating site must obtain consent.
Massachusetts- State law does not specify any guidelines on informed consent.
Michigan- State law does not specify any guidelines on informed consent.
Minnesota- State law does not specify any guidelines on informed consent.
Mississippi- Regulations specify that the provider must receive informed consent, but there is no information on required modality.
Missouri- State law requires that providers obtain patient consent, and consent is specifically required prior to asynchronous (store-and-forward) services to ensure confidentiality of medical records. Additionally, parents/guardians must provide consent for school-based health services. APRNs must also receive informed consent. The Medicaid program requires written informed consent.
Montana- State law does not specify any guidelines on informed consent.
Nebraska- Written patient consent is required prior to any service delivery. The Medicaid program states that consent can be written or emailed, and is only required before initial service delivery. The consent must include:
- “A list of alternative care options, including in-person services;
- All existing laws and protections including: confidentiality protections; patient access to all medical information from the consult;
- Whether the telehealth consultation will be recorded.
- Patient shall be informed of all parties present at both ends of the consult, and the patient may exclude anyone from either site;
- For telehealth behavioral health services, a safety plan must be developed.
- Special rules apply for a child who is receiving telehealth behavioral health services.”
Nevada- State law does not specify any guidelines on informed consent.
New Hampshire- State law does not specify any guidelines on informed consent.
New Jersey- Informed consent is required for telepsychiatry through the Medicaid program.
New Mexico- State law does not specify any guidelines on informed consent.
New York- Informed consent is required for telepsychiatry.
North Carolina- State law does not specify any guidelines on informed consent.
North Dakota- State law does not specify any guidelines on informed consent.
Ohio- Regulations specify that the originating site is responsible for obtaining informed consent. The modality is not specified.
Oklahoma- Regulations specify that written informed consent is required.
Oregon- State law does not specify any guidelines on informed consent.
Pennsylvania- Informed consent is required for telepsychiatry through the Medicaid program.
Rhode Island- Regulations specify that informed consent is required for email or text-based communication.
South Carolina- State law does not specify any guidelines on informed consent.
South Dakota- State law does not specify any guidelines on informed consent.
Tennessee- Medicaid requires that the patient be informed prior to the telehealth visit, and that the patient be given an option to opt for in-person care if preferred. The consent should be documented in the patient record.
Texas- State law requires that consent be obtained for telehealth services, and it can be obtained at either the originating or distant site. Parental/guardian consent is required for school-based services. Medicaid requires signed and dated consent for telemedicine, written or oral consent to allow another individual to participate in the session, and a “good-faith attempt” at written acknowledgement of privacy practices for email or electronic communication.
Utah- State law does not specify any guidelines on informed consent.
Vermont- The health care provider must document written or oral informed consent. Informed consent is required at the originating site for tele-ophthalmology or tele-dermatology. Asynchronous (store-and-forward) tele-ophthalmology or tele-dermatology does not preclude the patient from receiving the same service via real-time telemedicine at a later time. Patients also have the right to receive a consult with a distance site provider and get the results of said consult.
Virginia- State law specifies that informed consent is required. The modality is not specified.
Washington- The law does not specify any guidelines on informed consent.
Washington DC- Regulations indicate that written consent is required.
West Virginia- State law specifies that informed consent is required. The modality is not specified.
Wisconsin- State law specifies that informed consent is required. The modality is not specified.
Wyoming- Regulations state that written or oral consent is required for physical therapy. A telehealth consent for is required for the Medicaid program, and the patient can indicate that they want to discontinue telehealth services at any time.