Five Takeaways from North Dakota’s Proposed Telemedicine Rules

by Foley & Lardner LLP

The North Dakota Board of Medicine issued proposed regulations designed to move the Peace Garden State to the list of telemedicine-friendly states. The rules properly focus on the quality of care delivered, rather than the technical means through which it is delivered, aligning well with telemedicine practice rules articulated by other state medical boards. The Board held a public hearing on the proposed rules last month and has solicited comments, all of which will be discussed and reviewed at the Board’s November 20 meeting. The last time the Board issued guidance on telemedicine was March 2014.

Health care providers, hospitals, and start-up companies offering telemedicine services in North Dakota can review these proposed rules and sculpt their service offerings accordingly.

Providers should focus on these top five takeaways designed to protect patient quality and safety while fostering innovation and new care approaches:

  1. Physician Licensing. If patients will be located in North Dakota, be sure the treating providers are appropriately licensed. The rule states the practice of medicine occurs in the state where the patient is located at the time of the consult. Physicians providing medical care to patients located in North Dakota are subject to the licensing and disciplinary laws of North Dakota and must possess an active North Dakota license. Although no licensing exemptions were noted in the proposed rule, North Dakota does offer certain statutory licensure exemptions, which should be considered.
  2. Provider-patient relationships. A telemedicine provider must establish a valid doctor-patient relationship prior to issuing a diagnosis or treatment recommendation. The provider must perform an examination or evaluation that is “equivalent to in-person examination,” but this examination or evaluation may be performed entirely through telemedicine. The provider must also: 1) verify the identity of the patient seeking care; and 2) disclose, and ensure the patient has the ability to verify, the identity and licensure status of any licensee providing medical services to the patient.
  3. Appropriate technology and processes for patient exams. The rule favors telemedicine technology that “provides a doctor with information that is equal or superior to an in person examination.” The rule defines telemedicine as “the practice of medicine using electronic communication, information technologies or other means between a licensee in one location and a patient in another location, with or without an intervening health care provider.”

North Dakota’s definition of telemedicine includes direct interactive patient encounters as well as asynchronous store-and-forward technologies and remote monitoring. Certain types of telemedicine utilizing asynchronous store-and-forward technology or electronic monitoring, such as tele-radiology or ICU monitoring, do not necessarily require an independent examination of the patient to be performed. However, an examination or evaluation that consists only of a static online questionnaire or an audio conversation will not be considered to meet the standard of care.

  1. Patient medical records. The rule does not impose any telemedicine-specific recordkeeping requirements. Licensees using telemedicine are subject to all North Dakota laws governing the adequacy of medical records and the provision of medical records to the patient and other medical providers treating the patient.
  2. Remote prescribing. A North Dakota licensee who has performed a telemedicine examination or evaluation may prescribe medications according to his or her professional discretion and judgment, with one exception: licensees may not prescribe opioids for pain control through a telemedicine encounter. This means licensees may prescribe controlled substances, but must be sure to comply with all state and federal laws regarding the prescribing of controlled substances, and must also participate in the North Dakota Prescription Drug Monitoring Program. Prescribers must also comply with the Ryan Haight Act, though changes may be in the works as discussed in the American Telemedicine Association’s recent letter to the DEA.

Other Provisions

The proposed regulations also include two provisions not commonly seen in other state medical board telemedicine rules.

Ability to refer patients. North Dakota expects licensees to have the ability to make appropriate referrals of those patients not appropriate for diagnosis or complete treatment through telemedicine. This includes patients in need of emergent care or complementary in-person care. Providers should have procedures in place for when a physician determines the telemedicine encounter will not suffice and a referral to in-person care or emergent care is necessary.

Telemedicine and physician assistants. The proposed rule discusses the use of PAs for telemedicine practice, a topic gaining attention due to the complexity of physician supervision required (direct, indirect, etc.) and the vast differences among state laws in this regard. Under the proposed rules, “[a] physician assistant practicing telemedicine from another state is subject to the rules regarding physician supervision, except that supervision may be by a North Dakota licensed physician who is practicing telemedicine in North Dakota from the same state as the physician assistant, and need not be by a North Dakota licensed physician who is physically located in North Dakota.” It appears the intent is to require both the PA and the supervising physician to be licensed in North Dakota, and we believe the final rules will likely clarify or confirm this interpretation.

We will continue to monitor the proposed rules for when the final version is published.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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