Telemedicine prescribing position softened by North Carolina Medical Board to allow virtual examination and evaluation

Telemedicine positions tatementTelemedicine laws continue to push forward to keep pace with telehealth market practices. Telehealth legal requirements for prescribing have long been at issue across states. In many cases, medical board rules or applicable telemedicine statutes simply state that an “appropriate” or “good faith” exam must first be given, or that there must be an “established physician-patient relationship.” But what is an appropriate good faith exam — can it be virtual? Do these telehealth good faith exam laws require an in-person, face-to-face visit, or do they allow a virtual, online visit as a prerequisite to tele-psychiatry or other telehealth prescription? Will the ambiguity be enforced against medical doctors and/or telemedicine companies?

Digital health, online health, and telemedicine, like mobile medical apps, and other healthcare technology innovations, are constantly pushing regulations to the boundaries of market practices.

At its November 2014 meeting, the North Carolina Board of Medicine approved revisions to two position statements related to the practice of telemedicine. The Board revised draft versions of its “Telemedicine” and “Contact with patients before prescribing” position statements after considering feedback from the public and from stakeholders.

In its statement on Telemedicine, the medical board:

  • Defined telemedicine as “the practice of medicine using electronic communication, information technology or other means between a licensee in one location and a patient in another location with or without an intervening health care provider.”
  • Recognized the usefulness of telemedicine as a health technology.
  • Cautioned that licensees practicing telehealth will be held to the same standard of care as in-person medical care, and warned that failure to conform to standard of care will result in malpractice discipline. Telemedicine practitioners will be held to the standard of care for their specialty.
  • Advised that telehealth staff should be trained in use of telemedicine equipment.
  • Evaluations and Examinations: “Licensees using telemedicine technologies to provide care to patients located in North Carolina must provide an appropriate evaluation prior to diagnosing and/or treating the patient. This evaluation need not be in-person if the licensee employs technology sufficient to accurately diagnose and treat the patient in conformity with the applicable standard of care.” This considerably softens the Board’s position on prescribing for telehealth. The Board clarifies that with respect to telehealth prescribing, the legal rule is: “Other evaluations may also be considered appropriate if the licensee is at a distance from the patient, but a licensed health care professional is able to provide various physical findings that the licensee needs to complete an adequate assessment. On the other hand, a simple questionnaire without an appropriate evaluation may be a violation of law and/or subject the licensee to discipline by the Board.”
  • Licensee-Patient Relationship —The Board stresses the importance of proper patient identification in the context of the telemedicine encounter. Failure to verify the patient’s identity may lead to fraudulent activity or the improper disclosure of confidential patient information.
  • Medical Records — The licensee treating a patient via telemedicine must maintain a complete record of the telemedicine patient’s care according to prevailing medical record standards. Informed consent and patient confidentiality, privacy and security (state requirements no doubt apply, akin to HIPAA) are still required.
  • Licensure – A North Carolina license is required to treat patients who are located in North Carolina. “North Carolina licensees intending to practice medicine via telemedicine technology to treat or diagnose patients outside of North Carolina should check with other state licensing boards.”
  • The Board also cites the Ryan-Haight Act with respect to prescriptions of controlled substances, and laws governing online pharmacies.

The Bottom Line: Online assessments in (subject to standard of care concerns), questionnaires still out.

In its statement on Contact with Patients Before Prescribing, the Board further clarified it loosening of the law governing prescription based on telehealth assessment:

Prescribing for a patient whom the licensee has not personally examined may be suitable under certain circumstances. These may include admission orders for a newly hospitalized patient, medication orders or prescriptions, including pain management, from a hospice physician for a patient admitted to a certified hospice program, prescribing for a patient of another licensee for whom the prescriber is taking call, continuing medication on a short-term basis for a new patient prior to the patient’s first appointment, an appropriate prescription in a telemedicine encounter where the threshold information to make an accurate diagnosis has been obtained, or prescribing an opiate antagonist to someone in a position to assist a person at risk of an opiate-related overdose.

In addition, the Board noted several other instances in which the good faith exam for prescribing can be online:

  • Established patients may not require a new history and physical examination for each new prescription, depending on good medical practice.
  • Prescribing for an individual whom the licensee has not met or personally examined may also be suitable when that individual is the partner of a patient whom the licensee is treating for gonorrhea or chlamydia. (The Board gives further rules).

Once again, the medical board states that prescribing online based on the use of Internet questionnaires is inappropriate and unprofessional.

The Board’s position statements represent a sea change in the prohibition against prescribing based on an online diagnostic assessment.

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Michael H Cohen Healthcare & FDA Lawyers

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