September 17, 2019

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Arkansas is at it Again! Telemedicine Regulation in Arkansas Undergoes Additional Change

Arkansas currently has one of the most restrictive telemedicine environments in the country, and was one of the last states to require an in-person examination to form a provider-patient relationship. Prior to September 2016, Arkansas telemedicine laws required an initial in-person encounter to establish a valid physician-patient relationship. In September 2016, the state expanded the formation of a provider-patient relationship to include a face-to-face examination using both real time audio and visual telemedicine technology that provides information at least equivalent to the information that would have been obtained through an in-person examination.

Then, early last month, Arkansas Senate’s Public Health, Welfare and Labor Committee approved Senate Bill 146, which was signed by the Governor and became Arkansas Act 203 on February 20th, which further amended the state’s telemedicine laws to, among other things, enable patients to access telemedicine services from their home or other remote locations. The Act modified the “originating site” location requirement, redefining “originating site” to permit services to be provided wherever the patient is located at the time of the consult.  While this change has the potential to expand the use of telemedicine in Arkansas, the Act added more to its restriction on the formation of a professional relationship through telemedicine, as it states that a professional relationship cannot be formed through an internet questionnaire, email message, patient-generated medical history, audio-only communication, text messaging, fax machine or any combination of these technologies. This provision reaffirms that a patient relationship can only be formed in Arkansas with an Arkansas-licensed provider utilizing both real time audio and visual technology.

Notably, the Act also has implications for school-based telemedicine programs, which are increasing in popularity across the country. Arkansas requires school-based telemedicine programs that treat Medicaid recipients to utilize either the minor’s regular pediatrician or other primary care physician; a physician with a cross-coverage arrangement with the regular pediatrician or primary care physician; or have authorization from the regular pediatrician or other primary care physician of the minor.  (In most cases, school-based telemedicine programs require a parent’s consent for telemedicine services, and a child’s pediatrician or other primary care provider is notified after the child treated via telemedicine.) This specific provision is particularly protective of the role of treating physicians, but does not include the requirement that a parent or guardian have the power to consent to the formation of a physician-patient relationship with a minor, which is ordinarily expected.

In sum, while the law will not make Arkansas a leader in expanded access to telemedicine, it will help bring Arkansas into line with the rest of the US.

© 2019 McDermott Will & Emery

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About this Author

Associate

Marshall E. Jackson, Jr. is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C. office.  Marshall focuses his practice on transactional and corporate matters affecting health care organizations,  including business organization, corporate governance, mergers and acquisitions, strategic affiliations and joint ventures.  Marshall also provides advice and counsel on a full range of federal and state fraud and abuse laws to hospital systems, medical practice groups and pharmacies.

Prior to...

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Marcus Ryan, Mc Dermott Law Firm, General Healthcare Attorney
Associate

Ryan B. Marcus maintains a general health care practice. He advises hospitals health systems, and health industry clients on a variety of regulatory and transactional matters, including mergers, acquisitions, affiliations, and joint ventures.

While in law school, Ryan was editor-in-chief for the Annals of Health Law and a student fellow at the Loyola University Chicago Institute for Consumer and Antitrust Studies. He served as a judicial extern for the Honorable Virginia M. Kendall in the United States District Court for the Northern District of Illinois, and completed an externship in the general counsel’s office of a Chicago-area hospital. Ryan is a recipient of the Loyola Leadership, Service, and Public Interest Recognition Award.

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Lisa Schmitz Mazur, Health Law Attorney, McDermott Will Law Firm
Partner

Lisa Schmitz Mazur is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office.  Lisa maintains a general health industry practice, focusing on the representation of hospitals and health systems and other health industry providers.

Lisa’s representation of hospitals and health systems includes providing guidance on not-for-profit corporate governance matters, tax-exemption issues, conflict of interest compliance and overall corporate compliance effectiveness.  In addition, Lisa regularly assists hospital and health system clients to...

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