The Maryland Board of Physicians evaluated, then tabled for further consideration, a set of new telehealth rules designed to expand the opportunities for hospitals and providers to deliver virtual care services in Baltimore and throughout the State. The Board held a public hearing on January 24, 2018 to review proposed telehealth rules originally issued late last year. The new rules were influenced by the Washington, DC telemedicine rules, and incorporate comments submitted by a number of telehealth industry advocates, including the successful efforts of the folks at the Maryland Telehealth Alliance.
While the Board did not finalize the proposed rules, the rules offer useful insight into the Board’s priorities and its changing perspective to allow more robust and diverse applications of telehealth in Maryland. The Board will likely prepare a new draft of the proposed rules, so there will be another opportunity for telehealth providers and advocates to contribute comments and make their voice heard. In advance of that forthcoming draft, here are the key takeaways and insights health care providers, hospitals, and entrepreneurs in Maryland should know.
1. Revised Definitions. The rules replace the term “telemedicine” with “telehealth” and replace “physician” with “telehealth practitioner,” a term defined as a Maryland licensed physician or licensed allied health practitioner performing telehealth services within their respective scope of practice. In addition, the Board replaced “face-to-face” with “in-person” to emphasize that face-to-face encounters can be accomplished via telehealth, and to more clearly distinguish telehealth services from in-person services.
Insight: These revised definitions are beneficial to patients and providers alike because they acknowledge a broader use and scope of telehealth services, as well as telehealth services provided by non-physician health care professionals.
2. Expanded Modalities. The rules expand the definition of telehealth to expressly allow for additional modalities of care, including asynchronous (store and forward) services and remote patient monitoring.
Insight: These expanded definitions are helpful because they accommodate for new developments in technology and innovation in how healthcare services are (and will be) delivered. They also distinguish between asynchronous telehealth and interpretive services, which is typically a distinction made only by health plans and payers (e.g., under Medicare, radiology is technically considered a remote interpretive study and not a telehealth service). Yet, the proposed rules include “interpretive services” within the definition of telehealth services. From a rulemaking perspective, the Board might consider removing all references to interpretive services, or alternatively more clearly distinguishing that interpretive services are not subject to the various telehealth practice standards in the rule.
3. Telehealth practitioners must hold an active Maryland license if 1) they are physically located in Maryland; or 2) the patient is located in Maryland.
Insight: This requirement is atypical among States, as the majority generally require the practitioner to be licensed to practice in the State where the patient is located at the time of the telehealth encounter, not where the practitioner is located.
4. Standard of Care. A telehealth practitioner is held to the same standards of practice as those applicable in traditional health care settings and shall ensure that the quality and quantity of data and other information is sufficient in making medical decisions.
Insight: This is a sensible inclusion in the proposed rule, and is consistent with how the vast majority of States address telehealth-based services.
5. Valid Practitioner-Patient Relationship. The proposed rules imply that telehealth practitioners may create a valid practitioner-patient relationship via telehealth.
Insight: The Board should strongly consider adding the following explicit statement when preparing its next draft, consistent with many other States’ approaches: “A telehealth practitioner may create a valid practitioner-patient relationship via telehealth.”
6. Practice Standards. When initiating telehealth services through synchronous audio-visual communication a telehealth practitioner must:
Insight: The requirement to confirm the patient’s identity is not unusual among State telemedicine practice rules, but the seven-element process enumerated in the Maryland proposed rules is not found in most other States. In addition, the rule applies these requirements to providers “initiating telehealth services through synchronous audio-visual communication” but does not address asynchronous or other modalities of communication. The next version of the proposed rule should consider eliminating some of these as explicit requirements and applying them equally to all modalities of telehealth treatment when appropriate (i.e., not applicable to interpretive services, but applicable to asynchronous telehealth).
7. Telehealth Exams. A telehealth practitioner must perform a patient evaluation adequate to establish diagnoses and identify underlying conditions or contraindications to recommended treatment options before providing treatment or prescribing medication, except when performing asynchronous telehealth services or remote patient monitoring. A telehealth practitioner may use a surrogate examiner, telehealth devices, live synchronous audio-visual communications, and other methods of performing a medical examination remotely, as well as a patient evaluation performed by another licensed health care practitioner providing coverage, if the evaluation is adequate to comply with the regulations.
Insight: The concept underpinning this provision is sensible and defers to the standard of care and the professional judgment of the treating practitioner. It is unclear, however, why the rule does not apply those standards to asynchronous telehealth services or remote patient monitoring. Practitioners are capable of conducting patient evaluations via asynchronous modalities, and would be expected to do so prior to providing treatment or prescribing medication. The Board might consider revising the sentence for greater clarity as to what the Board expects of telehealth practitioners using asynchronous or remote patient monitoring technology.
8. Telehealth Prescribing. The rules allow prescribing of medications via telehealth without an in-person exam, provided the patient evaluation meets the guidelines and is within the standard of care. However, a telehealth practitioner may not treat a patient or prescribe medication based solely on an online questionnaire. In addition, a telehealth practitioner may not prescribe opioids through telehealth except: 1) for opioids used to treat opioid use disorder; (2) if the patient is in a “health care facility” as defined in Section 19-114 (d)(1) of the Health General Article; or 3) if the patient is in the presence of a licensed health care practitioner.
Insight: The provision banning treatment or prescribing based solely on an online questionnaire is consistent with the majority of States. The opioid language was the subject of considerable discussion at the Board’s January 24, 2018 meeting, as the Board seeks to balance patient access to legitimate medical care with the current opioid crisis. If the Board were to revise this provision, it might consider using language contained in other state telemedicine prescribing rules, such as “A telehealth practitioner may prescribe controlled substances through the use of telehealth, subject to the applicable standard of care and state and federal laws. However, a telehealth practitioner may not prescribe through the use of telehealth any controlled substance for treatment of chronic nonmalignant pain.” This approach not only mirrors other states, it restricts medically questionable prescribing while still allowing providers to use telehealth and controlled substances for specialties like addiction treatment, psychiatry, and emergencies.
9. Informed Consent. The rules require the telehealth practitioner to obtain and document the patient’s oral or written consent to telehealth services. The telehealth consent must include the following:
Insight: Telehealth informed consent rules, while well-intended, have been met with skepticism by some in the industry. This is due, in part, to the fact that it should be self-evident to the patient that the telehealth practitioner is not located in the same room as the patient. Some states have declined to impose telehealth informed consent requirements, or eliminated previously-existing requirements on the grounds they are unnecessary. As the Board considers its next draft, it is worth noting that the Maryland provisions would be among the most extensive telehealth consent requirements in the U.S. and it might be reasonable to trim them back or eliminate them entirely.
10. Medical Records; Privacy & Security Protocols. The telehealth practitioner must create and maintain adequate medical records of the encounter. The telehealth practitioner must comply with Maryland and federal laws and regulations governing the confidentiality and disclosure of medical records. All relevant patient-practitioner, communications, including those done via an electronic method such as email or other electronic messaging system, shall be documented and filed in the patient’s medical record. The telehealth practitioner must have sufficient privacy and security measures through encryption, password protection, and other security measures to assure confidentiality and integrity of patient-identifiable information. In addition, telehealth practitioners must establish and follow processes and procedures in the event of a data breach, to notify patients about the breach of their personal health records and or electronic synchronous communications.
Insight: These provisions are consistent with other state and federal laws, can be readily accomplished by most telehealth providers, and are a good addition consistent with the approaches other States have taken.
We will continue to monitor the proposed telehealth rules for developments in Maryland and across the United States.
For more information on telemedicine, telehealth, virtual care, and other health innovations, including the team, publications, and other materials, visit Foley’s Telemedicine Industry Team and Digital Health Group.