The world of digital health changed drastically overnight when COVID-19 began to spread across the globe. Almost instantaneously, a number of market opportunities grew exponentially, and companies’ trajectories either made them a powerhouse or caused them to significantly pivot operations to be able to meet demand in this new world.
Along with an incredible market opportunity, this new world order has created significant changes in risk for digital health and telemedicine companies. The combination of these factors creates winners and losers in the market. The winners are able to capitalize on the opportunity safely and strategically, but the losers will miss the mark.
That is where I want to help you today—navigating the ‘safely’ and ‘strategically’ part of this equation. With the new risks present in the marketplace, I don’t want anyone to get caught off guard and have an unexpected negative outcome or lawsuit be the end of a great business idea or take your focus away from capturing market opportunity. To that end, I want to arm you with five things to think about and process to make sure you are safe and strategic in your approach:
- Because of the incredible market need, regulations and enforcement of laws surrounding HIPAA and medical provider licensing have been temporarily relaxed. I encourage you to think about how to set up your business so that you will be compliant— not just on a temporary basis, but long after this crisis period. This means answering a few questions:
- Am I HIPAA compliant, and are all of my providers licensed in the patient’s location (or at least in a state that is part of a licensing reciprocity agreement)?
- Do I have adequate insurance coverage in case information is compromised and patients or customers sue me for compromising that data?
- Did you know that insurance policies, particularly medical malpractice policies, require the provider to be licensed where the patient brings a lawsuit for coverage to respond? Regardless of temporary changes to regulations, you could be faced with a difficult scenario if providers are not appropriately licensed.
- As a digital health company, a data breach or an error in your software/algorithm could lead to a provider making harmful decisions for a patient and potential subsequent injury. Are you confident that your insurance program would respond and defend you if this were to happen? This is where we see the most common gaps in insurance programs.
- Many digital health companies are able to temporarily bill for and receive payment for remote services from payers. However, new billing codes pose a risk because it could be difficult to ensure you are billing correctly. Furthermore, the reimbursement may not last post-COVID. This brings up a couple of issues:
- Do you have insurance coverage to defend you for any errors in billing for remote services provided by you/on your platform?
- Do you have a long-term payment model strategy that accounts for both reimbursement pathways and a return to low or no reimbursement for these services?
- Regulations have changed and are constantly shifting, and it is VERY important to note how they may vary from state to state. It is crucial to have an attorney partner who keeps up on state regulations and can advise you appropriately.
Beracah Stortvedt co-founded the Digital Health Practice at Marsh & McLennan Agency. He helps companies in the space grow their businesses safely and strategically through business insurance solutions (D&O, Medical Malpractice, Product Liability, Cyber Liability, etc.) in ways that generalist brokers cannot. He also uses his background as an underwriter and an MBA with an emphasis in strategy to help his clients obtain the best available risk transfer options at the lowest cost.