South Carolina Enacts New Telemedicine Law: What You Should Know

10 August 2016 Health Care Law Today Blog
Author(s): Nathaniel M. Lacktman Thomas B. Ferrante

South Carolina Governor, Nikki Haley signed the South Carolina Telemedicine Act (S.B. 1035) into law, on June 3, 2016, establishing new telemedicine practice standards in the Palmetto State. Prior to the Act, the controlling guidance was South Carolina Code § 40-47-113 and the South Carolina Board of Medical Examiners’ 2015 Advisory Opinion on Telemedicine and 2013 Advisory Opinion on Establishment of Physician-Patient Relationship as Prerequisite to Prescribing Drugs.

The Act creates a new section in the South Carolina Code (§40-47-37). It is generally consistent with the Board’s existing guidance, but some provisions of the Act may require the Board to revise or add to its existing guidance to the extent the prior guidance conflicts with the Act. It also changes some language in Section 40-47-20 (definitions) and Section 40-47-113 (doctor-patient relationship and prescribing). Interested telemedicine companies and healthcare providers looking to offer telemedicine services in South Carolina should review the new statute and adjust policies and processes accordingly.

Highlights of the new statute include the following:

  • Telemedicine. Telemedicine is defined as “the practice of medicine using electronic communications, information technology, or other means between a licensee in one location and a patient in another location with or without an intervening practitioner.” This definition does not, on its face, explicitly require synchronous interactive audio-video communications technology. However, licensees must use technology sufficient to accurately diagnose and treat the patient in conformity with the applicable standard of care.
  • Licensure. A physician who intends to practice medicine in South Carolina via telemedicine must have a valid, current South Carolina medical license.
  • Doctor-Patient Relationship. A physician may establish a valid doctor-patient relationship solely via telemedicine without the need for an in-person exam. This provision of the Act is consistent with, and codifies in statute, the existing Board Advisory Opinions.
  • Standard of Care. A physician delivering care via telemedicine must adhere to the same standard of care as when delivering in-person services.
  • Telemedicine Examinations. A physician who establishes a physician-patient relationship solely via telemedicine must:
    • Adhere to current standards for practice improvement and monitoring of outcomes and provide reports containing such information upon request of the Board.
    • Provide an evaluation prior to diagnosing and/or treating the patient utilizing technology sufficient to accurately diagnose and treat the patient. Alternatively, the physician can use a licensed healthcare professional as a patient-side telepresenter to provide the physical findings the physician may need to complete an adequate assessment. A simple questionnaire without an appropriate evaluation is prohibited.
    • Verify the identity and location of the patient and be prepared to inform the patient of the provider’s name, location, and professional credentials.
    • Establish a diagnosis through the use of accepted medical practices, which may include patient history, mental status evaluation, physical examination, and appropriate diagnostic and laboratory testing in conformity with the applicable standard of care.
    • Ensure the availability of appropriate follow-up care.
    • Discuss with the patient the value of having a primary care medical home (not defined in the statute) and, if the patient requests, provide assistance in identifying available options for a primary care medical home.
  • Remote Prescribing. Remote prescribing without a prior in-person exam is allowed, subject to the following limitations:
    • A physician may not establish a doctor-patient relationship via telemedicine for the purpose of prescribing medication when an in-person physical examination is necessary for the patient’s diagnosis.
    • The physician prescribing controlled substances via telemedicine must comply with all relevant federal and state laws including, but not limited to, participation in the South Carolina Prescription Monitoring Program and the Ryan Haight Act.
    • Schedule II and Schedule III prescriptions and lifestyle medications (including erectile dysfunction drugs) are not permitted unless specifically authorized by the Board.
    • Prescribing abortion-inducing drugs is not permitted.
  • Patient Records. The physician must create and maintain a record of the patient’s care consistent with state and federal requirements. The records must be made accessible to the patient and other practitioners in a timely fashion when lawfully requested.
  • Telemedicine Training. Any other person involved in a telemedicine encounter must be trained in the use of the telemedicine equipment and be competent in its operation.

The South Carolina Telemedicine Act is not the only recent telemedicine development in South Carolina. Last month, the legislature voted to override Governor Haley’s veto of the “Eye Care Consumer Protection Law” which bans prescriptions for eyeglasses and contact lenses based solely on remote eye exams.

Originally, this post was an alert sent to the American Health Lawyers Association’s (AHLA) Health and Information Technology Practice Group Members. It appears here with permission. For more information, visit AHLA’s website.

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