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New patient protections for telemedicine prescribing

IAs advances in technology continue to transform the delivery of healthcare in Virginia, more consumers are turning to telemedicine as a cost-effective way to obtain medical treatment.  And as adoption of this healthcare delivery system continues to grow, Virginia’s policymakers are working to strike a balance between patient safety and the growing health care needs of Virginians.

Senate Bill 1227, introduced by Sen. Jeff McWaters, and House Bill 2063, a companion bill introduced by Del. Terry Kilgore, help expand access to care for minor illnesses by amending Virginia law (§54.1-3303) to clarify that a prescriber licensed in Virginia may prescribe Schedule VI controlled substances via telemedicine, provided the prescriber conforms to the same standard of care expected of an in-person visit.

Virginia law classifies non-DEA controlled substances as Schedule VI controlled substances.  Schedule VI includes medications such as decongestants, antihistamines, anti-fungals and antibiotics such as penicillin.

Currently, state law requires a prescriber to establish a bona fide practitioner-patient relationship in which the prescriber must perform an appropriate examination either physically or by using instrumentation and diagnostic equipment through which images and medical records are transmitted electronically.

The legislation expands the types of tools that can be used to conduct an examination for the purposes of prescribing via telemedicine by allowing an examination through interactive two-way, real-time communications services or through store-and-forward technologies.  Store-and-forward technologies allow for the electronic transmission of medical information, such as digital images, documents and videos through a secure transmission, from an originating site, which is then forwarded to a provider at a distant site.

The telemedicine prescriber must still conform to the standard of care expected of an in-person consultation and must meet other certain requirements, including a mandate that the patient provide a medical history the prescriber can review at the time of prescribing. Additionally, the prescriber must be actively licensed and authorized to prescribe in Virginia and must make a diagnosis at the time of prescribing.

The legislation also clarifies that the conditions required for a valid telemedicine prescription do not apply to a prescriber providing on-call coverage, a prescriber consulting with another prescriber regarding a patient’s care, or prescriber orders for hospital out-patients or in-patients.

The legislation follows recommendations made by the Federation of State Medical Boards a national nonprofit organization that represents the 70 medical and osteopathic state medical boards in the United States.  The FSMB’s April 2014 guidelines, “Model Policy for the Appropriate Use of Telemedicine Technologies in the Practice of Medicine,” underscores the importance of professional accountability and delivery of care that adheres to current standards of practice, regardless of whether the prescription is made in-person or via telemedicine.  The report states, in part:

“Prescribing medications, in-person or via telemedicine, is at the professional discretion of the physician. The indication, appropriateness, and safety considerations for each telemedicine visit prescription must be evaluated by the physician in accordance with current standards of practice and consequently carry the same professional accountability as prescriptions delivered during an encounter in person.”

The legislation also minimizes the future potential of unnecessary barriers on telemedicine services by defining telemedicine in a technology-neutral manner.  The legislation amends the definition of telemedicine under Virginia Code §38.2-34138.16 to define telemedicine as the use of electronic technology or media, including interactive audio, or video, for the purpose of diagnosing or treating a patient or consulting with other health care providers regarding a patient’s diagnosis or treatment.  The bill specifically excludes audio-only telephone from the definition of telemedicine, as well as electronic mail messages, facsimile transmissions and online questionnaires.

With the numerous health care challenges facing Virginia, SB 1227 and HB 2063 are a step forward in advancing Virginia’s telemedicine industry. It will increase health care access and demonstrate that Virginia is open to those industries willing to invest in this sector of the health care industry.

By Michele Satterlund, a lawyer with McGuireWoods LLP and a lobbyist with McGuireWoods Consulting LLC.

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