Telemedicine Practice and Remote Prescribing in Delaware

Note: This is a companion piece to our parallel article discussing the various Delaware commercial insurance coverage requirements in the Act.

Delaware Gov. Jack Merkell signed into law, on July 7, 2015, a bill implementing a variety of telemedicine scope of practice rules and commercial insurance coverage requirements.

Declaring “liberty and independence” from the constraints of brick and mortar health care, Delaware became the 29th state to enact a new telemedicine Act (HB-69), unanimously passing both the House and Senate and reflecting strong bi-partisan support for telehealth in Delaware.

The language of the Act states it takes effect immediately, although as a practical matter, it may take the licensing boards some time to implement regulations underpinning the statutory changes.

The Act amends numerous provisions in Title 24 (health care professions and occupations) of the Delaware Code to account for changes to telemedicine and telehealth scope of practice. The Delaware telemedicine law includes separate, but complementary, definitions for telehealth and telemedicine.

• Telehealth is defined as “the use of information and communications technologies consisting of telephones, remote patient monitoring devices or other electronic means which support clinical health care, provider consultation, patient and professional health-related education, public health, health administration, and other services as described in regulation.”

• Telemedicine is defined as “a form of telehealth which is the delivery of clinical health care services by means of real time two-way audio, visual, or other telecommunications or electronic communications, including the application of secure video conferencing or store and forward transfer technology to provide or support health care delivery, which facilitate the assessment, diagnosis, consultation, treatment, education, care management and self-management of a patient’s health care by a health care provider practicing within his or her scope of practice as would be practiced in-person with a patient, and legally allowed to practice in the state, while such patient is at an originating site and the health care provider is at a distant site.”

Delaware Telehealth Scope of Practice Requirements

The changes to Delaware’s Medical Practice Act (Title 24, Chapter 17) include a new section 1769D governing the physician practice of telemedicine and telehealth in the State. The law includes the following highlights:

Creating a valid doctor-patient relationship. A valid doctor-patient relationship established through telehealth includes, but is not limited to, the following seven elements:

1. Fully verifying and authenticating the location and, to the extent possible, identifying the requesting patient;
2. Disclosing and validating the provider’s identity and applicable credential(s);
3. Obtaining appropriate consents from requesting patients after disclosures regarding the delivery models and treatment methods or limitations, including informed consents regarding the use of telemedicine technologies;
4. Establishing a diagnosis through the use of acceptable medical practices, including patient history, mental status examination, physical examination (unless not warranted by the patient’s mental condition), and appropriate diagnostic and laboratory testing to establish diagnoses, as well as identify underlying conditions or contra-indications, or both, to treatment recommended or provided;
5. Discussing with the patient the diagnosis and the evidence for it, the risks and benefits of various treatment options;
6. Ensuring the availability of the distant site provider or coverage of the patient for appropriate follow-up care; and
7. Providing a written visit summary to the patient.

In-Person Examination Requirement and Exceptions. Physicians using telemedicine technologies to provide medical care to patients located in Delaware must, prior to a diagnosis and treatment, any only if a face-to-face encounter would otherwise be required if same service were not delivered in-person, provide one of the following:

• An appropriate examination in-person;
• Have another Delaware-licensed practitioner at the originating site with the patient at the time of the diagnosis;
• The diagnosis must be based using both audio and visual communication; or
• The service meets standards of establishing a patient-physician relationship included as part of evidenced-based clinical practice guidelines in telemedicine developed by major medical specialty societies, such as those of radiology or pathology.

Remote Prescribing. Treatment and consultation recommendations made in an online setting, including issuing a prescription via electronic means, are held to the same standards of appropriate practice as those in traditional in-person settings. Without a prior and proper doctor-patient relationship, providers are prohibited from issuing prescriptions solely in response to an Internet questionnaire, an Internet consult, or a telephone consult. Prescriptions made through telemedicine under a valid doctor-patient relationship may include controlled substances (subject to any limitations as set by the Board of Medicine).

Record Keeping. The physician treating a patient through telemedicine must maintain a complete record of the patient’s care which must follow all applicable state and federal statutes and regulations for recordkeeping, confidentiality, and disclosure to the patient.

Exceptions. Telemedicine services may be performed without a doctor-patient relationship under the following exceptions:

1. Informal consultation performed by a physician outside the context of a contractual relationship and on an irregular or infrequent basis without the expectation or exchange of direct or indirect compensation;
2. Furnishing of medical assistance by a physician in case of an emergency or disaster if no charge is made for the medical assistance; or
3. Episodic consultation by a medical specialist located in another jurisdiction who provides such consultation services on request to a person licensed in this state.

Network Use. The law requires that the definition of telemedicine must include, at such time is feasible and when appropriate, utilizing the Delaware Health Information Network (DHIN) in connection with the practice of telemedicine. Presumably, this will be a subject of implementing regulations.

Other Health Care Professionals. In addition to physician practice, the Act empowers the following Delaware professional licensing boards to issue regulations regarding telehealth and telemedicine: psychologists, physician assistants, nurses, pharmacists, genetic counselors, chiropractors, respiratory care practitioners, podiatrists, dentists, occupational therapists, optometrists, mental health counselors and chemical dependency professionals, dietitians and nutritionists, and clinical social workers.

A number of Delaware hospitals and health care providers already offer telehealth services, and patients have been able to access virtual care as part of these health care delivery models. Surveys also indicate health care executives are optimistic on the benefits offered by telehealth. The new provisions can serve as explicit guidance to inform telehealth practitioners on how to operate within Delaware and provide meaningful virtual care services to patients in the State.

Resources

For more information on telemedicine and telehealth, including publications, presentations and other materials, visit Foley.com.