Health Care Partner at Foley & Lardner
Mar 21, 2016
Louisiana’s Board of Medical Examiners (the “Board”) enacted regulations in the fall amending the prior practice standards for telemedicine, the requirements for obtaining a telemedicine permit, and the rules on remote prescribing of controlled substances. The new rules explicitly state that an initial in-person visit is not required if the technology is sufficient to provide the physician to practice at an acceptable level of skill and safety. This requirement was not expressly addressed under prior rules.
Telemedicine companies and health care providers providing services in Louisiana should be mindful of these rules and adjust their practices and procedures accordingly. Most notably, out-of-state physicians should explore arrangements with physicians in Louisiana for follow-up care referrals.
Here are highlights of the Louisiana rules:
- Telemedicine. Telemedicine remains defined as the practice of health care delivery, diagnosis, consultation, treatment, and transfer of medical data by a physician using interactive telecommunications technology that enables a physician and patient at two locations separated by distance to interact via two-way video and audio transmissions simultaneously. A telephone-only conversation or electronic messaging between a physician and a patient do not meet the definition of telemedicine for purposes of the regulations. Only secure communication technology can be used for telemedicine. At a minimum, the technology must comply with all state and federal laws and regulations for medical information privacy and security.
- In-State Physician Licensure. A physician with an unrestricted Louisiana medical license and who maintains a “physical practice location” in Louisiana can provide medical services via telemedicine to patients in Louisiana. “Physical practice location” means a “clinic facility, office or other location physically located in [Louisiana], where the physician spends the majority of his or her time practicing medicine.” The old rule had a similar definition in the term “primary practice site,” but the new rules add that no physician can use telemedicine to provide care to a patient physically located outside of Louisiana, unless the physician has authority to do so by the licensing authority in the state in which the patient is located.
- Out-of-State Physician Permit. If a physician does not maintain a “physical practice location” in Louisiana, he or she cannot practice telemedicine in Louisiana unless he or she holds a telemedicine permit issued by the Board. A physician seeking a telemedicine permit must: 1) possess the qualifications for medical licensing (e.g., age and character and medical degree requirements), 2) possess a medical license in another state, and 3) complete a board-approved application and fee. In addition, the application for a telemedicine permit now requires an affirmation that the applicant has an arrangement with one or more physicians who maintain a physical practice location in Louisiana to accept patients for referral and follow-up care.
- Consultations. Louisiana has a peer-to-peer consultation exception to licensing, and it also applies to telemedicine-based consults. The Louisiana physician receiving the opinion of the unlicensed consulting doctor must remain personally responsible to the patient for the primary diagnosis and any testing and treatment provided.
- Physician-Patient Relationship. Physicians utilizing telemedicine must establish a proper physician-patient relationship by, among other things, conducting an appropriate examination. The examination does not require an in-person visit if the technology is sufficient to provide the physician the pertinent clinical information reasonably necessary to practice at an acceptable level of skill and safety.
- Standard of Care and Remote Prescribing. The practice of medicine by telemedicine including issuance of any prescription via electronic means is held to the same prevailing and usually accepted standards of medical practice as those in traditional in-person settings. An online, electronic or written mail message, or a telephonic evaluation by questionnaire or otherwise, does not satisfy the standards of appropriate care. If required by the standard of care in an in-person setting, a physician must be able to: utilize peripherals; obtain diagnostic testing; if necessary in the physician’s judgment, access a patient-side tele-presenter to assist with the encounter; and conduct an in-person examination or refer the patient to another physician for an in-person examination.
- Controlled Substances. In most instances, the Board believes an in-person visit is required prior to prescribing any controlled substance. However, provided the physician can conduct a patient examination via telemedicine sufficient to make a diagnosis, controlled substances can be prescribed if: 1) the physician has had at least one in-person visit with the patient at a physical practice location in Louisiana within the past year; 2) the prescription is issued for a legitimate medical purpose; 3) the prescription is in conformity with the same standard of care applicable to an in-person visit; and 4) the prescription is permitted by and in conformity with all applicable state and federal laws and regulations. The Board may grant an exception to these limitations in individual cases. Prescribers must also comply with the Ryan Haight Act, though provider-friendly changes are in the works due in part to efforts by members of the American Telemedicine Association and its letter to the DEA.
- Disclosures. The regulations require certain disclosures to the patient prior to providing telemedicine services: 1) the name, Louisiana medical license number and the contact information of the physician, 2) the physician’s specialty or area of practice, 3) how to receive follow-up and emergency care; 4) how to obtain copies of medical records and/or insure transmission to another medical provider; 5) how to receive care in the event of a technology or equipment failure; and 6) notification of privacy practices. These disclosures were not required under the old rules.
- Informed Consent. Informed consent to telemedicine services is required. A physician must notify a patient of the relationship between the physician and patient and the respective role of any other health care provider with respect to management of the patient and that the patient may decline to receive medical services by telemedicine at any time.
- Patient Records. A patient record must be created for every telemedicine visit according to the same standard of care as an in-person visit. The maintenance and confidentiality of the records must be consistent with state and federal law. Records must be made available to the patient or a physician to whom the patient may be referred within a reasonable amount of time. A physician providing telemedicine services must also have access to the patient’s medical record.
For more information on telemedicine, telehealth, virtual care and other health innovations, including the team, publications, and other materials, visit Foley’s Telemedicine Practice.