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Virginia charts a pathway for ocular telehealth

By Michele Satterlund

telemedicine_mainAs technology innovations contin­ue to change the healthcare land­scape, Virginia’s policymakers have established a framework that expands access to ocular health­care while putting in place stan­dards to protect eye care patients.

Senate Bill 1321, introduced by Sen. Charles Carrico, and companion House Bill 1497, introduced by Del. Peter Farrell, R-Richmond, expand Virginia’s telehealth laws to address the growing ocular tele­health industry. The legislation, which mirrors Virginia’s law governing the pre­scription of controlled substances via tele­medicine, adds a new section to Virginia law (§54.1-2400.01:2) and defines an ophthalmic prescription as either a handwritten or electronic or­der for prescription eyeglasses or contact lenses issued by a provider who is either licensed by the Board of Optometry as an optometrist, or by the Board of Medicine as an ophthalmologist.

The legislation requires that any oph­thalmic prescription include all informa­tion necessary and appropriate for the dispensing of prescription eyeglasses or contact lenses, including the provider’s name, address and telephone number. In the case of contact lens prescriptions, all information required by the Fair­ness to Contact Lens Consumers Act (15 U.S.C.7601 et seq.) must be included as well, and a prescription for eyeglasses must include all information required by the Ophthalmic Practice Rule (OPR), also known as the Eyeglass Rule (16 C.F.R. Part 456).

The Contact Lens Consumers Act re­quires that contact lens prescriptions in­clude the patient’s name; the date of the exam; the issue and expiration date of the prescription; the prescriber’s name, ad­dress, telephone and fax number; contact lens power, material or manufacturer or both the base curve or appropriate desig­nation used to match the curvature of the eye; diameter when appropriate; and in the case of a private label lens, the name of the manufacturer and trade or equiva­lent brand name.

The OPR clarifies that a prescription is the “written specification for lenses for eyeglasses which are derived from an eye examination, including all the in­formation specified by state law.” An eye examination is defined as the process of determining the refractive condition of a person’s eyes or the presence of any visu­al anomaly by the use of objective or sub­jective tests. The rule prohibits a provid­er from waiving or disclaiming liability for the goods and services provided on the prescription.

Virginia law is silent regarding any requirement for an examination prior to prescribing eyeglass­es or contact lenses. The new legislation clarifies that an ex­amination must take place, and identifies the types of tech­nology by which a patient examination can occur for the purposes of prescrib­ing eyeglasses or contact lenses, by al­lowing an examina­tion through face-to-face interactive, two way, real-time com­munication or store-and-forward technology. Store-and-forward tech­nologies allow for the electronic trans­mission of health care 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.

Regardless of the technology used to conduct the examination, the provid­er is required to conform to the same standard of care expected of an in-per­son examination, and must consider the patient’s age, presenting condition and whether the standard-of care requires the use of diagnostic testing or the per­formance of a physical examination.

The legislation adds patient protec­tions by clarifying that an ophthalmic prescription cannot be determined sole­ly by the use of an online questionnaire, and requires that the provider is active­ly licensed in the commonwealth and authorized to prescribe. Further, the provider must have obtained an updat­ed medical history and made a diagnosis at the time of prescribing, and upon re­quest, the provider must provide patient records in a timely manner and in accor­dance with state and federal laws and regulations.

The provisions of the new law do not apply to ophthalmic prescriptions writ­ten prior to July 1, 2017, nor do the pro­visions apply to opticians providing ser­vices in accordance with §54.1-1509, or to over-the-counter eyeglasses or readers.

As the use of technology continues to expand health care options, Virginia is once again leading the nation by provid­ing a model that supports increased ac­cess to ocular care while ensuring strong patient protections.

Michele Satterlund is a lawyer and part­ner with McGuireWoods LLP in Rich­mond, and a lobbyist and senior vice pres­ident in the State Government Relations Practice of McGuireWoods Consulting LLC.

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