September 26, 2021

Volume XI, Number 269


September 24, 2021

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Virginia Telehealth Law: What You Need to Know

Virginia has made strides to expand the telehealth offerings available to its residents and the Old Dominion took another step forward advancing telemedicine when it enacted a bill amending Virginia Code § 38.2-3418.16 to expand commercial insurance coverage of telemedicine-based services. Additionally, the Virginia Board of Medicine last year published Telemedicine Guidelines to instruct practitioners on this rapidly-growing industry.

The guidelines address establishing a valid practitioner-patient relationship, licensure, evaluation and treatment, informed consent, medical records, privacy and security of patient information, and remote prescribing. Health care providers, hospitals, and start-up companies offering telemedicine services in Virginia should review the guidelines when deploying services in this state.

Here are the highlights of Virginia’s telemedicine rules:

Telemedicine. The guidelines incorporate the language from the statute, and define telemedicine services as: “the use of electronic technology or media, including interactive audio, or video, for the purpose of diagnosing or treating a patient or consulting with other health care providers regarding a patient’s diagnosis or treatment.” Telemedicine services do not include an audio-only telephone, electronic mail message, facsimile transmission, or online questionnaire.

  • Licensure. The practitioner must be licensed by both the regulatory board of the state where the patient is located and the state where the practitioner is located. This requirement is more onerous than most states which generally require the practitioner only be licensed in the state where the patient is located.

  • Practitioner-Patient Relationship. A physician may establish a valid doctor-patient relationship via telemedicine without the need for an in-person examination. To do so, the practitioner must:

    • Meet the standard of care;

    • Adhere to Virginia law, and the law in any state where a patient is receiving services, that defines the patient-practitioner relationship;

    • Verify and authenticate the patient’s location and identity;

    • Disclose the practitioner’s identity and credentials; and

    • Obtain appropriate consent after disclosures regarding the delivery methods or limitations, including any special informed consents regarding the use of telehealth technologies.

  • Telehealth Consultations and Treatment. Treatment and consultation recommendations, including remote prescribing, are held to the same standards of appropriate practice as those in traditional settings. Virginia’s standards include a documented medical evaluation and relevant clinical history to establish a diagnosis, as well as identifying contra-indications to care and underlying conditions prior to providing treatment. Treatment, including issuing a prescription, based solely on an online questionnaire does not constitute an acceptable standard of practice.

  • Remote Prescribing & Controlled Substances. Virginia physicians may prescribe medications via telemedicine (i.e., remote prescribing). Doing so is at the discretion of the physician, provided the prescribing is consistent with standards of care and lists the direct contact information of the prescriber (or prescriber’s agent) on the prescription itself. Regarding controlled substances, prescriptions must comply with requirements set forth in Va. Code §§ 54.1-3408.01 and 54.1 -3303(A). Physicians may prescribe Schedule VI medication via telemedicine when a doctor-patient relationship is established using face-to-face, two-way real-time communications services or store-and-forward technologies when all of the following conditions are met:

    • The patient has provided a medical history that is available for review by the prescriber;

    • The prescriber obtains an updated medical history at the time of prescribing;

    • The prescriber makes a diagnosis at the time of prescribing;

    • The prescriber conforms to the standard of care expected of in-person traditional exams including the use of diagnostic testing or physical examination, via condition-appropriate peripheral devices;

    • The prescriber is licensed in Virginia and authorized to prescribe;

    • If the patient is enrolled in a health plan, the prescriber is credentialed by the health plan as a participating provider and the prescribing meets the plan’s qualifications for reimbursement; and

    • Upon request, the prescriber provides medical records from the consultation to patients or their primary care physicians in a timely manner.

  • Informed Consent. Patient consent to the use of telemedicine technologies must be obtained, documented, and maintained. The consent should include:

    • Identification of the patient, the practitioner, and the practitioner’s credentials;

    • Types of telemedicine interactions/transmissions permissible such as prescriptions, refills, education, diagnosis, and appointment scheduling;

    • Agreement by the patient that it is the role of the practitioner to determine whether or not the condition being diagnosed and/or treated is appropriate for a telemedicine encounter;

    • Security measures taken with use of telemedicine such as password protection, encryption and notification of potential risk to privacy and sensitive information even with such measures;

    • Hold harmless clause for information loss due to technical failures; and

    • Requirement for express patient consent to forward patient information to a third party.

  • Medical Records. The practitioner must maintain a medical record in connection with the utilization of telemedicine services that is accessible to both the practitioner and the patient and consistent with established laws and regulations pertaining to patient health records.

  • Privacy and Security. Telemedicine providers should establish written policies and procedures that address the following factors: privacy; health care personnel who will process messages; hours of operation; types of transactions that will be permitted electronically; required patient information to be included in the communication; archiving and retrieval; and quality oversight mechanisms. These protocols must be periodically evaluated for currency and readily available for review.

We will continue to monitor Virginia for any rule changes that affect or improve telemedicine opportunities in the state.

Virginia is among 29 states plus the District of Columbia with laws requiring commercial health insurance companies cover services provided via telehealth to the same extent those services are covered if provided in-person. Continued expansions in reimbursement mean providers can enhance telehealth offerings, both for the immediate cost savings and growing opportunities for revenue generation, to say nothing of patient quality and satisfaction. Commercial insurance reimbursement is among the five telemedicine trends driving health care transformation in 2016 and beyond.

© 2021 Foley & Lardner LLPNational Law Review, Volume VI, Number 104

About this Author

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. 

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

Thomas (T.J.) Ferrante is a Partner 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...