The Monroe public schools in Michigan recently received $200,000 in a series of grants to assist the implementation of the district’s telehealth initiative, joining hundreds of schools across the country that are either already implementing telehealth services or planning pilot programs.
To combat growing concerns about student absenteeism and to keep students in school to the greatest extent possible, the potential benefits of telehealth programs are clear: They allow students to have remote access to a primary care physician, where they can be evaluated, treated, and, in many cases, sent back to class.
However, there is a downside. Telehealth programs pose extensive, complicated, and widely varied legal issues related to school and health care privacy mandates; disability rights laws; funding, finance, and insurance issues; contract drafting and interpretation; indemnification agreements; shared personnel services; and general liability concerns. In light of these legal issues, school boards and administrators need to proceed with caution and make sure that they are seeking legal counsel at all stages of any telehealth initiative, from inception to implementation.
What is telehealth?
School telehealth services (sometimes referred to as telemedicine) are typically provided from a mobile cart, which contains a computer, monitor, and webcam. It also contains basic remote-operation tools, such as stethoscopes that can allow a physician to hear a patient’s heartbeat and lung functions remotely and cameras that enable streaming video feeds of the inside of a child’s throat and ears. A nurse or technician operates the equipment in the schools, and the evaluation is conducted by a remote physician.
Telehealth programs are expensive, with mobile telehealth carts costing anywhere from $20,000 to $60,000, which doesn’t include costs related to staffing, routine maintenance, and upkeep. Most schools rely upon grant funding and other financial aid to cover the implementation costs, but this often involves stringent requirements. It often requires financial commitment from the schools as well, such as a one-to-one matching of grant money. These grants, however, are typically limited in scope, and schools will ultimately need to shoulder the financial burden for long-term implementation.
To do so, most programs rely upon insurance billing and reimbursements to cover the ongoing operational costs, dramatically expanding the scope of services for which a school would typically submit for reimbursement. Medicaid reimbursement for school telehealth services is permitted in at least 18 states.
In addition, at least 28 states require private insurance companies to reimburse for telehealth visits to the same extent that in-person visits are reimbursed. These reimbursements, essential for the long-term viability of the programs, pose a variety of new legal and practical challenges.
In many schools, telehealth services are provided — and sometimes fully funded — by community hospitals or health care systems, which often have multiple financial interests in the projects, from the perspective of new-patient acquisition, the establishment of patient loyalty in a community, and the benefit of strong public relations in areas where there may be significant competition with other local health care systems.
Other districts choose to contract with third-party, for-profit companies specializing in telehealth services, where the financial interest is solely in the reimbursable billing, itself. Regardless of how the services are provided, it is important that board members and administrators recognize the financial incentives involved with any partner/provider. This recognition allows schools to take the necessary steps in truly analyzing the relationship and taking any necessary legal precautions to protect the school against potential risk.
Do legal protections apply?
In some states, telehealth services may be legally viewed as a medical function, not a typical school function. That view impacts insurance coverage and potentially negates the statutory tort immunity that shields schools from negligence and other tort claims in many states. The possible increase in liability exposure may be critical, particularly considering a recent study published in the medical journal Pediatrics.
Researchers found that children receiving telemedicine services were far more likely to be prescribed medication than those receiving services through an urgent care center or their primary care physician. Also, 4 out of 10 telemedicine doctors — twice as many as those in traditional office visits—failed to meet medical guidelines on matching treatment to diagnosis.
This new research potentially calls telehealth services for children into question. Schools need to identify areas of potential legal exposure and consider addressing them through enhanced insurance coverage and/or indemnification agreements with telehealth providers.
Schools also need to be sure that the staffing necessary for the effective use of these programs does not infringe upon the duties of already-understaffed school nurses. Nurses are vital to ensuring the safety of the students, providing necessary emergency care, and implementing nursing accommodations set forth in student Section 504 plans or IEPs.
The legal importance of school nurses is such that, even if nurses are available to assist with the implementation of telehealth programs, schools should consider other options.
Two privacy laws
Typically, student record data privacy is governed by the Federal Education Rights and Privacy Act (FERPA), even with regard to school health records. However, the privacy rule of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), a much more restrictive standard, would likely apply to telehealth services that do not fall within the scope of school health services.
The determination of what constitutes a school health service can be problematic under the law, and telehealth initiatives result in the handling of a much larger quantity of health-related data than schools are typically used to. In addition, most schools are not familiar with the more stringent HIPAA requirements.
Thus, legal guidance by attorneys familiar with the interplay between FERPA and HIPAA is critical when entering into contractual agreements with providers. This guidance also is important when establishing policies and practices regarding the collection, maintenance, and sharing of student health data between the school and the telehealth provider.
The information-sharing issue also can pose difficulties with regard to the legal concept of “child find” under the IDEA and Section 504, which requires that schools identify and evaluate students with potentially eligible disabilities under those laws. Parents may assume, since the telehealth services are being provided on school grounds, that the school is aware of the information contained within the student’s telehealth records. However, pursuant to HIPAA, the telehealth provider may not release the confidential health-related information to school officials.
Thus, there may be a disconnect in what the parents believe that the school knows about a student’s medical and treatment history and what is shared with the schools by the telehealth providers. School attorneys can assist in developing information-sharing procedures and written notices to families to protect against child find claims.
Legal issues involved with telehealth are complex and wide-ranging. Poorly conceptualized or ineffectively run telehealth programs can have potentially significant financial impact. School boards and administrators should work closely with legal counsel to develop legally defensible telehealth programs aimed at minimizing potential liability.
Erin D. Gilsbach (firstname.lastname@example.org) is the executive director of EdLaw Interactive and an attorney with the Steckel and Stopp law firm, in Slatington, Pennsylvania.