Maine Welcomes Telemedicine with New Board Guidelines

03 August 2015 Health Care Law Today Blog

The Maine Board of Licensure in Medicine enacted new guidelines governing the practice of telemedicine and the use of technology to deliver health care services. Effective June 2014, Maine’s guidelines expand upon prior Board advisory rules and policies. The guidelines, which are flexible and forward-thinking to protect patient safety while allowing for health innovation, represent the Board’s overall approach to telemedicine practice in Maine.

Regrettably, the Maine guidelines appear to use the terms “face-to-face” and “in-person” interchangeably, and not always with consistency. This may cause some confusion among telemedicine providers, so it is essential to review Maine’s guidelines in their overall context to best understand the intent. Other states continue to adopt a more standardized approach by using “in-person” to mean when the provider and patient are physically located in the same room, and recognizing that a “face-to-face” consult may occur via telemedicine interactive audio and video.

Highlights Include:

  • Maine License Required: A Maine medical license is required for the practice of telemedicine with patients located in Maine, as the practice of medicine occurs at the location of the patient.
  • Practice Standards: The same standards of practice for physician interaction, treatment, recommendations, and prescribing apply, regardless of whether the physician provides services via telemedicine or traditional in-person encounters. The telemedicine interaction must include all the recognized components of a patient-physician encounter required to establish a diagnosis and treatment.
  • In-Person Examinations: Maine does not require an in-person examination prior to the telemedicine encounter. A valid doctor-patient relationship may be created via telemedicine. However, physicians offering primary care via telemedicine, other than acute episodic care, are required to conduct a “face-to-face” visit with their patient at least once a year.
  • Remote Prescribing: Under the guidance, physicians may conduct remote prescribing without the need for an in-person exam. Remote prescribing is at the discretion of the prescribing physician and is held to equivalent standards for in-person encounters. Where proper measures are followed, and the appropriate clinical consideration is carried out and documented, physicians may exercise their judgment and prescribe medication as part of telemedicine encounters. Providers may not engage in internet prescribing. The guidance is silent on remote prescribing of controlled substances.
  • Accessibility of Medical Records: Medical records are expected to satisfy Maine’s medical record standards and confidentiality rules, and must be maintained at the distant site. Records must be accessible to local health care providers and facilities upon request.
  • Informed Consent: Maine’s consent requirements are more onerous than other states. Patient consent to the use of telemedicine technologies must be obtained, and should include:
    • Patient and physician identification
    • Types of telemedicine interactions/transmissions permissible such as prescriptions, refills, education, diagnosis, and appointment scheduling
    • 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
    • Possibility of transmission failure or loss of information due to technical reasons
    • Information regarding emergency care and after-hours contacts
  • Emergency Care: The physician providing services through telemedicine is required to provide to the patient with an emergency plan when a hospital emergency department or an acute care facility is needed. A plan of next steps to be taken by the patient must be provided to the patient by the physician providing telemedicine care when that care indicates the need for an acute care facility or hospital emergency department, including after-hours emergency treatment instructions.
  • Technology Considerations: The guidelines require telemedicine to use either real-time audio and visual communications, or store & forward technology, provided the technology offers the same information to the provider as if the encounter had occurred in person. The technology must also verify the identity and location of the patient, and disclose the physician’s identity and credentials.
  • Other Communications: Audio only, telephone conversation, e-mail/instant messaging or fax are not acceptable methods for the practice of medicine in Maine with the following exceptions:
    • Providers covering their own practice or that of another licensee where an established patient-physician relationship exists.
    • Providers who initiate treatment of a patient/partner for sexually transmitted disease.
    • Distant site provider who provides consultation to a licensee who has primary responsibility for the care and treatment of the patient.

States continue to develop guidelines and policies governing the practice of telemedicine. Maine’s telemedicine guidelines permit physicians using technology to provide virtual care in a broad and meaningful manner. Providers in Maine are already taking advantage of telemedicine, making quality health care more readily accessible to those living in rural areas.

Please note Foley Summer Associate, Arrie Kustin, was also an author of this post and the Health Care Law Today team thanks her for her contributions.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services

Insights