Telemedicine Informed Consent In Utah and Arizona: Requirements and Best Practices

Obtaining and documenting informed consent for telemedicine are good risk management practices and, in Utah and Arizona, are required by law.

Jeanne Varner Powell, JD

03/09/2023

Informed consent is an integral part of telemedicine. While consent to telemedicine may seem implied and documentation of consent unnecessary, obtaining and documenting informed consent are good medical professional liability risk management practices and, in Arizona, required by law.

Telemedicine Informed Consent Laws in Arizona

Before providing care via telemedicine, Arizona law¹requires the physician or other health care professional to:

Obtain verbal or written informed consent
Document verbal consent in the medical record

While not required by Arizona law, clinicians should always verify the patient’s identity and verify and document the patient’s physical location at the start of each telemedicine visit. Since state laws generally require clinicians to be licensed where the patient is located, this step minimizes the risk of discipline for practicing without a license. For more information read MICA’s Are You Licensed Where Your Patient is Located.

Telemedicine Informed Consent Laws in Utah²

The Utah Administrative Rules require clinicians to verify the patient’s physical location and identity prior to each telehealth services encounter.³ The Rules define “telehealth services” very broadly, to include any “transmission of health-related services or information through the use of electronic communication or information technology."⁴

In addition, prior to each initial telehealth services encounter and at least annually, clinicians must obtain patient informed consent by clearly disclosing:

Any additional fees for telehealth services and, if billed separately, how payment shall be made;
To whom patient health information may be disclosed and for what purpose, including clear reference to any patient consent governing release of patient-identifiable information to a third-party;
Patients’ health information rights;
Appropriate uses and limitations of the service, including emergency health situations;
Information confirming that the telehealth services meet industry security and privacy standards, and comply with federal laws (HIPAA and HITECH);
Potential privacy risks that exist regardless of security measures;
Risk of lost information due to a technical failure (clearly reference any applicable patient consent to hold the provider harmless for such loss); and
The website owner/operator, location, and contact information.⁵

You Need a Telemedicine Consent Policy

Whether required by statute or not, documentation of telemedicine informed consent may prevent claims by patients who later allege they would not have engaged in telemedicine appointments had they known about certain risks or limitations. A good practice starts with a policy and procedure, so that everyone involved knows what to do and how to do it. The policy and procedure should include a comprehensive informed consent discussion prior to a telemedicine visit. Ideas for the policy include:

Outline key points for the clinician-patient discussion and incorporate information required by state statute, Executive Order, licensing board policy, or Medicaid rule;
Specify that clinicians should write a detailed chart note documenting the elements of the discussion, noting the patient’s verbalization of consent (or refusal), and verifying the patient’s physical location at the start of the appointment;
Use MICA’s template or develop your own telemedicine informed consent form for patients to sign before care and treatment begins. The form should include the information the clinician covers orally with the patient; and
Integrate the discussion and documentation into the workflow.

Telemedicine Informed Consent Discussion

Telemedicine is still new to many. The clinician should explain the risks, benefits, and limitations of telemedicine and address patient responsibilities and expectations. Present the information in terms the patient can understand, so the patient can make an informed decision. The consent discussion process also may increase the patient’s comfort with new technology or the change from in-person to telemedicine appointments. Prior to providing telemedical care, physicians and other clinicians should present the following information:⁶

Basic explanation of telemedicine and the platform being used;
Benefits – including accessibility, cost savings, and efficiency;
Risk that a technical interruption could delay evaluation or treatment;⁷
Risk that the clinician’s medical decision-making and diagnostic ability may be compromised by the inability to conduct a comprehensive physical exam, lack of access to complete medical records, and/or inadequate image quality;
Risk of data breach even with the use of security protocols;⁸
Alternatives, such as in-person care;
Option to decline telemedicine or stop the visit at any time;
Patient responsibilities, which may include providing complete and accurate information, using a secure network and a private location, and complying with clinician recommendations such as follow up labs, diagnostic tests, referrals, or in-person visit;
Federal laws governing privacy and security of health information, as well as patient access to that information, apply equally to in-person and telemedicine care;
Confirmation of the state where the patient is physically located during the appointment;
Billing – confirm there will be a charge for the visit and that patient’s share of cost will be governed by their individual insurance coverage,
Discussion of the practice’s telemedicine no-show or cancellation policies; and
Opportunity for the patient to ask questions.

Telemedicine Workflow

Build the consent process into your telemedicine workflow. One idea is to develop a telemedicine consent package to send patients at the time of scheduling. The package could include the consent form and an information sheet explaining telemedicine and the practice’s telemedicine process in patient-friendly terms. An explanation before the appointment gives patients time to consider the information and think of questions to ask the clinician during the consent discussion. Providing information for a patient to digest ahead of time also can reduce the risk that a patient could later credibly allege that the physician “rushed” the patient through the consent process.

MICA’s Risk Team Consultants are ready to respond to your questions about telemedicine informed consent. You can reach a Consultant Monday – Friday 8am – 5pm Arizona Time at 800-352-0402 x 2137 or rm_info@micainsurance.com.

_{[1] A.R.S. § 36-3602(A). Workers’ compensation plans may impose additional requirements. Consult the AHCCCS Medical Policy Manual for additional consent requirements applicable to Medicaid patients. Consent is not required for the transmission of diagnostic images to or the reporting of diagnostic test results by a consultant, or if the patient is not physically present during the telemedicine interaction, or in an emergency. A.R.S. § 36-3602(E).}

_{[2] State Medicaid or workers’ compensation plans may impose additional requirements.}

_{[3] Utah Administrative Rule R-156-603(1)(a)(i).}

_{[4] Id. at R-26-60-102(8)}

_{[5] Id. at R-156-1-603(1)(b)(i)-(vii).}

_{[6] For more information about what to include in the consent discussion, consult the American Telemedicine Association’s Core Operational Guidelines for Telehealth Services Involving Provider-Patient Interaction (p. 7, numbers 6-8); see also American Medical Association Ethics Opinion 1.2.12, Ethical Practice in Telemedicine, and Federation of State Medical Boards Model Policy for the Appropriate Use of Telemedicine Technologies in the Practice of Medicine.}

_{[7] Clinicians should explain the procedure to follow if a technical interruption occurs.}

_{[8] Always inform patients whether the platform the practice is using meets HIPAA standards.}