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Arkansas Prepares New Telemedicine Practice Rules

The Great State of Arkansas was ranked last among all states in a recent report by the American Telemedicine Association on telemedicine practice standards. The good news is the Arkansas Board of Medicine indicated plans to address this issue through new rules this year. Its Telemedicine Advisory Committee is working on an advisory opinion or new regulations regarding telemedicine. Currently, Arkansas Code 17-80-117, enacted in April 2015, and Regulation No. 2(8) of the Arkansas State Medical Board, require an initial in-person encounter to establish a valid physician-patient relationship. The Board’s Committee circulated draft rules in October, which if enacted would improve the practice environment by allowing a doctor to establish a relationship with a patient “using a face-to-face real-time audio and visual technology” in certain situations.

Interested telemedicine companies and healthcare providers looking to offer telemedicine services in Arkansas should review the draft rules and consider contacting policymakers to make your voice heard regarding the practice standards.

The draft rules provide as follows:

  1. Establishing a provider-patient relationship. The rules begin with the premise that an in-person exam is the preferred method of establishing a patient-physician relationship. However, the rules permit an initial encounter via “face-to-face real-time audio and visual technology” in the following circumstances:

    1. The patient (or guardian) provides a detailed explanation of their complaint to the physician;

    2. The technology and peripherals used are at least equal to an in-person examination by a physician; and

    3. Prior to treatment; the patient (or guardian) must provide informed consent:

      1. to be treated via telemedicine after being provided a description of the potential risks, consequences, and benefits of treatment through telemedicine; and

      2. for the physician to provide treatment through non-in-person real time interactive audio & video encounter or the use of audio, visual technologies.

  2. If a patient-physician relationship is established via telemedicine, then the following apply to each subsequent visit via telemedicine:

    1. Informed Consent: The physician must confirm that informed consent has been obtained.

    2. Remote Prescribing: Absent a prior in-person history and physical, physicians may not issue a prescription for: (i) any controlled substances; or (ii) lifestyle drugs.

    3. Medical Records: Physicians must send a medical record documenting the encounter to the patient via email or regular mail within twenty-four (24) hours of the encounter. The record must also be sent to a physician designated by the patient or the patient’s primary care physician (PCP) within twenty-four (24) hours unless the patient specifically requests it not be sent.

    4. Prompt Referral: If the patient needs to be seen in person for their current medical issue, the treating physician must make every reasonable effort to refer the patient to an appropriate medical care provider/facility and document the recommendation in the patient chart.

    5. Standard of Care: The same standard of care applies as an in-person encounter. Physicians must take an appropriate patient history and physical, when necessary using appropriate technology, during the initial encounter and keep a documented medical record.

    6. Follow-up Care Encouraged: Every telemedicine encounter must include a documented statement encouraging and directing the patient to establish a relationship with a primary care provider and to seek follow-up care with a primary care provider after every telemedicine encounter.

    7. Licensure: Physicians providing care via telemedicine to a patient located within the state of Arkansas must be licensed to practice medicine in Arkansas.

    8. Record Inspection: Physicians who provide care via telemedicine must provide a complete copy of the patient’s medical record to the Arkansas State Medical Board upon request.

© 2022 Foley & Lardner LLPNational Law Review, Volume VI, Number 47

About this Author

Jacqueline Acosta, Investigation Attorney, Foley Lardner Law Firm

Jacqueline Acosta is an associate and litigation lawyer with Foley & Lardner LLP. Ms. Acosta’s practice includes litigation matters with a focus on representing clients in investigations and enforcement actions by the Department of Justice, Securities and Exchange Commission and other regulatory bodies. She is a member of the firm’s Business Litigation & Dispute Resolution, Latin America and Government Enforcement, Compliance & White Collar Defense Practices.

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

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.