Legal and Ethical Considerations for Remote Cognitive Testing

The current public health crisis has expanded access to telemedicine. However, this access has been granted largely by ignoring or discretionary application of rules and regulations.

This is unlikely to always be the case.

With that in mind, practitioners new to telemedicine should carefully consider the legal and ethical issues that related to this delivery model. While many aspects of traditional practice translate directly into the telemedicine environment, the nature of the distant and electronic connection between doctors and patients creates additional considerations.

Licensure and Credentialing

Licensure and credentialing are key considerations in undertaking telemedicine services to clients. Physicians and other practitioners obtain licenses that enable practice only in-state, assuming that clinicians and patients are physically in the same state. 

The internet can link physicians and patients anywhere. However, prudent practice for telemedicine dictates that patients live in the state in which the clinician holds a license. For practices that want to offer remote cognitive testing services across state lines, clinicians can obtain licenses to practice in multiple states.  

These rules have changed recently due to COVID-19, and states and CMS continue making week-by-week adjustments to telemedicine regulations. CMS has extended their telemedicine rules to allow services to all Medicare recipients regardless of location, for example.

Other important provisions that could change with increased telemedicine adoption may concern informed consent, need for initial or periodic face-to-face contact, management of prescriptions (particularly controlled substances), and delivery of services to patients’ homes. 

Regularly reviewing relevant regulations developed by state licensing boards can help physicians and practices keep up with changes. 

e-Security, Privacy, and Confidentiality

Delivery of telemedicine services falls under the provisions of the Health Insurance Portability and Accountability Act (HIPAA) and The Health Information Technology for Economic and Clinical Health Act (HITECH).

Using BrainCheck for at-home and remote cognitive assessment clearly falls under HIPAA/HITECH provisions. Specifically, it involves the transmission of protected health information in electronic form in connection with a health care claim. The same HIPAA privacy practices adopted by traditional office practices can be extended to telemedicine with several recommended additions.

Recently revised emergency telemedicine provisions have allowed for use of consumer grade systems, such as Skype and Facetime. However, HIPAA-compliant video conference systems are increasingly accessible and affordable. Zoom, Google, VSee and others offer healthcare-grade systems.

Want to know more? Part I of this series covers technology requirements. »

Regarding security and privacy, HIPAA and HITECH do not specify requirements for interactive video-conferencing. But clinicians adopting the practice of telemedicine should confirm and document that the video-conference systems used for patient care provide for data security and encryption. Additionally, any robust system should also prevent unauthorized intrusion into the video call.

A variety of encryption methods are in common use and should be documented by the manufacturer or vendor. Encryptions standards that provide 128-bit key size, such as AES, are generally considered the minimum for healthcare applications of video-conference. In all cases, practices should obtain a Business Associate Agreement (BAA) from the vendor of the video-conference system in order to document HIPAA-compliance. 

Adjusting to the New Normal

Almost overnight, the global COVID-19 pandemic has introduced massive changes in healthcare delivery — certainly for the immediate future and likely beyond. 

One positive outcome? For practices and patients alike, services offered via telemedicine are more familiar, well-accepted, and likely to become much more widely available. 

Choosing to invest in telemedicine for clinicians and patients can offer short and short- and long-term benefits. Addressing the legal and ethical considerations for remote cognitive testing while adapting office-based encounters, such as cognitive testing, for telemedicine with tools like BrainCheck, will help practices continue to provide safe and effective care going forward.

Add remote cognitive assessment to your practice today! »


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About the author

Robert Cuyler, PhD


Robert Cuyler is a clinical psychologist with decades of clinical, management and consulting experience. He is a Clinical Advisor at BrainCheck and the chief clinical officer of Palo Alto Health Sciences. Previously, Dr. Cuyler served as the CEO of JSA Health Telepsychiatry and clinical advisor to MDLive/Breakthrough Behavioral. Dr. Cuyler received his PhD in psychology from Louisiana State University and his postdoctoral fellowship from the Menninger Foundation.

Other posts by Robert Cuyler »