June 12, 2017

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Arkansas (Again!) Medical Board Approves Telemedicine Rules

The Arkansas State Medical Board on Thursday voted unanimously to pass Regulation 38 establishing key definitions for telemedicine practice in the State. The new regulation imposes specific Board of Medicine requirements for practicing telemedicine, and is to be read in connection with Regulation No. 2(8) (valid doctor-patient relationships). However, neither regulation addresses the definition of “originating site” under Arkansas Code 17-80-118 or how the Board would apply it to telemedicine consults where the patient is located at his or her home.

The current Arkansas statutory definition of “originating site” reads:

  • “The offices of a healthcare professional or a licensed healthcare entity where the patient is located at the time services are provided by a healthcare professional through telemedicine; and

  • The home of a patient in connection with treatment for end-stage renal disease.”

Any change to that definition would likely require a legislative solution, as the Board’s regulations can interpret the law, but do not (and likely cannot) contradict the Code. Regulation 38 expects practitioners to use synchronous audio-video technology, and states “A patient completing a medical history online and forwarding it to a physician is not sufficient to establish the relationship, nor does it qualify as sort-and-forward technology.”

As we reported in August, the Medical Board previously approved proposed Regulation 38 and (allowing a doctor to establish a valid relationship with a patient, without the need for an in-person exam, if the doctor “performs a face to face examination using real time audio and visual telemedicine technology that provides information at least equal to such information as would have been obtained by an in-person examination”). The Arkansas Legislature’s Rules and Regulations subcommittee voted to approve Regulation 2.8 but sent Regulation 38 back to the Medical Board for a new public-comment hearing. Regulation 38 will now go back to the Rules and Regulations subcommittee. If lawmakers approve it, the rule will become effective 10 days after it is sent to Arkansas’ secretary of state’s office.

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About this Author

Thomas B. Ferrante, Foley, Healthcare Regulatory Lawyer, Transactional Matters Attorney
Associate

Thomas (T.J.) Ferrante is an associate and health care lawyer with Foley & Lardner LLP, where he focuses his practice on a wide range of transactional and related regulatory issues for health industry clients, including for-profit and not-for-profit hospitals and health systems, multi-specialty physician practice groups, and long-term care providers. Mr. Ferrante has experience with a variety of transactions, including mergers and acquisitions, joint ventures, strategic affiliations, obtaining and maintaining tax-exemption, employment contracts and leases, and other...

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Nathaniel (Nate) Lacktman is a partner and health care lawyer with Foley & Lardner LLP, and a Certified Compliance & Ethics Professional (CCEP). His practice focuses on health care compliance, counseling, enforcement and litigation, as well as telemedicine and telehealth. Mr. Lacktman is a member of the firm’s Health Care Industry Team which was named “Law Firm of the Year — Health Care Law” for three of the past four years on the U.S. News – Best Lawyers® “Best Law Firms” list. 

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