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Arkansas' New Telemedicine Rules Small Step Forward

The Arkansas Legislative Council’s Rules and Regulations Subcommittee approved, on August 16, 2016, proposed regulations which, if accepted by the Arkansas Legislative Council, will remove some restrictions on telemedicine providers in a state that enjoyed the lowest ranking among all states in the American Telemedicine Association’s most recent report.

Currently, Arkansas Code 17-80-117, enacted in April 2015, and Regulation No. 2(8), require an initial in-person encounter to establish a valid physician-patient relationship. Following the issuance of draft rules last October and the release of proposed amendments in April, the Legislative Subcommittee gave its final approval in August to amend Arkansas’ prior practice standards for telemedicine by revising the text of Regulation No. 2(8)(A) and (B). These amendments 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 revised regulation will become effective August 26.

A second proposed rule concerning telemedicine known as Regulation No. 38 was also on the agenda of the Subcommittee but ultimately was withdrawn. The new Regulation would establish definitions for “store and forward technology” and “originating site” for a telehealth encounter. Both issues have been hotly contested in recent meetings of the Arkansas State Medical Board due to disagreements over the forwarding of patient medical records as a means to establish a valid physician-patient relationship and whether or not that qualifies as store-and-forward technology.

While the approval of revised Regulation No. 2(8) clears the way for providers to connect with patients via virtual visits, the absence of Regulation No. 38 forces telemedicine to take place at a medical site such as a hospital or doctor’s office, not a patient’s home (care for end-stage renal disease is exempted). It significantly limits opportunities for patient in-home care. The Medical Board will hold a new public hearing on Regulation 38 in early October.

Telemedicine companies and health care providers providing services in Arkansas should be mindful of these pending developments.

© 2019 Foley & Lardner LLP

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About this Author

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...

813-225-4148
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