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Arkansas New Proposed Rules Allow Telemedicine Exams

Arkansas was ranked last among all states in a recent report by the American Telemedicine Association on telemedicine practice standards. Earlier this year, we reported on the Arkansas Board of Medicine’s plans to remedy its ranking through the issuance of new telemedicine rules. Draft rules articulating telemedicine principles were circulated last October, and the Board recently issued proposed amendments to its regulations, specifically revising Regulation 2 and creating a new Regulation 38.

Currently, Arkansas Code 17-80-117, enacted in April 2015, and Regulation No. 2 require an initial in-person encounter to establish a valid physician-patient relationship. The new proposal revises the text of Regulation No. 2(8)(A) and (B).  Proposed Regulation 38 acts as a complement to the statutory requirements.  If enacted, it will allow 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 doctor must also provide or arrange for the patient to receive follow-up care, when medically necessary.

The Board will hold a public hearing involving the proposed amendment to Regulation 2.8 and new Regulation 38 on Thursday, June 9, 2016 at 8:30 a.m. in Little Rock. Interested telemedicine companies and healthcare providers looking to offer telemedicine services in Arkansas should review the proposed regulations and consider submitting comments to make your voice heard regarding the changes. Important considerations remain to be discussed.  For example, the proposed regulations fail to address the “originating site” restrictions included under Arkansas Code 17-80-117(a)(3),(6) and how the Board would apply that to situations where the patient is located at his or her home.

Under the proposed rules, the following requirements would apply to all services provided by physicians via telemedicine:

  1. Physicians providing care via telemedicine to a patient located within the State of Arkansas must be licensed to practice medicine in the State of Arkansas.

  2. The practice of medicine via telemedicine is held to the same standards of care as traditional in-person encounters.

  3. A physician using telemedicine may not issue a prescription for any controlled substances defined as any scheduled medication under schedules II through V unless the physician has seen the patient for an in-person exam or unless a relationship exists through consultation or referral; on-call or cross-coverage situations; or through an ongoing personal or professional relationship.

  4. The physician must keep a documented medical record, including medical history.

  5. At the patient’s request, the physician must make available to the patient an electronic or hardcopy version of the patient’s medical record documenting the encounter. Unless the patient declines to consent, the physician must forward a copy of the record of the encounter to the patient’s regular treating physician if that physician is not the same one delivering the service via telemedicine.

  6. Services must be delivered in a transparent manner, including providing access to information identifying the physician in advance of the encounter, with licensure and board certifications, as well as patient financial responsibilities.

  7. If the patient, at the recommendation of the physician, needs to be seen in person for their current medical issue, the physician must arrange to see the patient in person or direct the patient to their regular treating physician or other appropriate provider if the patient does not have a treating physician. Such recommendation must be documented in the patient’s medical record.

  8. Physicians who deliver services via telemedicine must establish protocols for referrals for emergency services.

  9. The distant site physician must obtain a detailed explanation of the patient’s complaint from the patient or the patient’s treating physician.

  10. If a decision is made to provide treatment, the physician must agree to accept responsibility for the care of the patient.

  11. If follow-up care is indicated, the physician must agree to provide or arrange for such follow-up care.

  12. Store-and-forward technology, such as X-rays, MRIs, and digital images is permitted, and most commonly used in radiology, pathology, dermatology, and ophthalmology. However, a patient completing a medical history online and forwarding it to a physician does not qualify as store-and-forward technology.

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About this Author

Nathaniel Lacktman, Health Care Attorney, Foley and Lardner Law Firm
Partner

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. 

813-225-4127
Thomas B. Ferrante, Foley, Healthcare Regulatory Lawyer, Transactional Matters Attorney
Senior Counsel

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 transactional matters.

Mr. Ferrante also advises health care clients in all aspects of federal and state regulatory matters, including anti-kickback, self-referral laws, state licensure, fee splitting, Medicare and Medicaid reimbursement and compliance, and federal laws related to clinical trials. He has represented clients investigated by various federal and state agencies, including the Department of Health and Human Services Office of Inspector General, the Florida Agency for Health Care Administration, and the Florida Board of Medicine.

813-225-4148