Arkansas Prepares New Telemedicine Practice Rules

16 February 2016 Health Care Law Today Blog

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.

For more information on telemedicine, telehealth, and virtual care innovations, including the team, publications, and other materials, visit Foley’s Telemedicine Practice.

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.