Alert – West Virginia Updates Its Telemedicine Law

The telemedicine market is growing at an astonishing rate in the United States with more providers jumping on the band-wagon on a daily basis.  The advances in telemedicine technologies hold great promise to address some of the ailments within the healthcare market place, such as the increasing costs of healthcare, an aging population looking to stay in their own homes longer, and mounting incidences of chronic and lifestyle associated diseases. 

The promise of telemedicine notwithstanding, obstacles abound and one misstep could be a costly one.  Not only is there a lack of uniform telemedicine laws among the states, within each state there is no single statute or regulation governing the practice of telemedicine.  Rather, in each state an assemblage of outdated and/or irreconcilable statutes and regulations (if there are any in the first place) must be divined including those addressing physician-patient relationships; teleprescribing; standards of care; consent issues; licensure requirements; pharmacy prohibitions; scope of practice; certificates of need; fee-splitting prohibitions; state privacy laws; and corporate practice of medicine prohibitions, just to name a few.   As a result, there has been a flurry of activity within various states seeking to address some of the main obstacles to telemedicine.  West Virginia is no exception.

On March 24, 2016, West Virginia Governor Earl Tomblin signed into law House Bill No. 4463.  HB 4463 is, comparatively speaking, fairly comprehensive telemedicine legislation, addressing  standards of care issues, types of technologies that are permitted to be utilized, remote prescribing, and other general requirements relating to a proper telemedicine encounter.  The bill also authorizes the Board of Medicine and the Osteopathic Board to propose joint rules that implement further the statutory provisions contained with HB 4463.  The bill has an effective date of June 11, 2016. 

Some of the highlights from the bill include:

 I.    Definition of Telemedicine. 

• “Telemedicine” is defined as “the practice of medicine using tools such as electronic communication, information technology, store and forward telecommunication, or other means of interaction between a physician in one location and a patient in another location, with or without an intervening healthcare provider.”
• “Telemedicine technologies” are defined as “technologies and devices which enable secure electronic communications and information exchange in the practice of telemedicine, and typically involve the application of secure real-time audio/video conferencing or similar secure video services, remote monitoring, or store and forward digital image technology to provide or support healthcare delivery by replicating the interaction of a traditional in-person encounter between a physician and a patient.”

 II.   Establishing the Physician-Patient Relationship through Telemedicine.

(1) A physician-patient relationship may not be established through:

• Audio-only communication;
• Text-based communications such as e-mail, internet questionnaires, text-based messaging or other written forms of communication; or
• Any combination of the above.

(2) If there is no existing physician-patient relationship prior to the utilization of telemedicine technologies, or if services are rendered solely through telemedicine technologies, a physician-patient relationship may only be established:

• Through the use of telemedicine technologies which incorporate interactive audio using store and forward technology, real-time videoconferencing or similar secure video services during the initial physician-patient encounter; or
• For the practice of pathology and radiology, a physician-patient relationship may be established through store and forward telemedicine or other similar technologies.
• Once a physician-patient relationship has been established, either through an in-person encounter or in accordance with either of the above, the physician may utilize any telemedicine technology that meets the standard of care for the particular patient presentation.

  III.   Additional Requirements to Practice Telemedicine. A physician using telemedicine technology shall:

• Verify the identity and location of the patient;
• Provide the patient with confirmation of the identity and qualifications of the physician;
• Provide the patient with the physical location and contact information of the physician;
• Establish or maintain a physician-patient relationship that conforms to the standard of care;
• Determine whether telemedicine technologies are appropriate for the particular patient presentation for which the practice of medicine is to be rendered;
• Obtain from the patient appropriate consent for the use of telemedicine technologies;
• Conduct all appropriate evaluations and history of the patient consistent with traditional standards of care for the particular patient presentation; and
• Create and maintain healthcare records for the patient which justify the course of treatment and which verify compliance with the requirements of this section,
• The above requirements do not apply to the practice of pathology or radiology medicine through store and forward telemedicine.

  IV.    Standard of Care.  The practice of medicine via telemedicine technologies is subject to the same standard of care, professional practice requirements and scope of practice limitations as traditional in-person physician-patient encounters. Treatment, including issuing a prescription, based solely on an online questionnaire, does not constitute an acceptable standard of care.

  V.     Patient Records. The patient record established during the use of telemedicine technologies shall be accessible and documented for both the physician and the patient. All laws governing the confidentiality of healthcare information and governing patient access to medical records shall apply to telemedicine patient encounters. A physician must make the documentation of the telemedicine encounter easily available to the patient, and subject to the patient’s consent, to any identified care provider of the patient.

  VI.    Prescribing Limitations.

• A physician-patient relationship that utilizes telemedicine technologies only (no in-person encounter) may not prescribe to that patient any controlled substances listed in Schedule II of the Uniform Controlled Substances Act.
• A physician may not prescribe any pain-relieving controlled substance listed in Schedules II through V of the Uniform Controlled Substance Act as part of a course of treatment for chronic non-malignant pain solely based upon a telemedicine encounter.

However, a physician is not prohibited from using audio-only or text-based communications to:

• Responding to call for patients with whom a physician-patient relationship has been established through an in-person encounter by the physician;
• Providing cross coverage for a physician who has established a physician-patient relationship with the patient through an in-person encounter; or
• Providing medical assistance in the event of an emergency situation.