Potential Revisions to North Carolina Medical Board Telemedicine Position Statements on the Horizon

by K&L Gates LLP
Contact

The Policy Committee of the North Carolina Medical Board (“NCMB”) issued proposed revisions to its “Telemedicine” and “Contact with Patients before Prescribing” position statements on September 23, 2014. In short, the proposed revisions:

  • Clarify that there is one standard of care for providers based on their specialty, and telemedicine providers are subject to the same standard of care as non‑telemedicine providers;
  • Revise the standard regarding when telemedicine providers need not conduct an in‑person examination, such that the licensee need not conduct an in‑person examination if he or she “employs technology and peripherals sufficient to provide an examination that is equal or superior to an in‑person examination”;
  • Clarify that it is the telemedicine provider’s responsibility to verify the identity and location of the patient;
  • Specifically state that prescribing controlled substances for pain treatment via telemedicine is disfavored; and
  • Specifically add the potential for a more general ability for telemedicine providers to prescribe for a patient when not personally examining the patient by including language that prescriptions may be made “where the threshold information to make any accurate diagnosis has been obtained.”

The proposed changes are in follow up to an NCMB‑hosted roundtable discussion on August 20, 2014, to gather feedback from stakeholders—including private practitioners, academic medical centers, government officials, and insurers—regarding its current telemedicine position statement. The comment period is open until November 5, 2014.

Proposed Telemedicine Revisions

The NCMB has proposed revisions to the following subsections of the current position statement:

Standard of Care. The proposed revisions reemphasize that current standards of medical practice in North Carolina, as well as professional accountability and consequences for failing to meet such standards, apply equally to the traditional practice of medicine and the practice of medicine via telemedicine. This includes current standards regarding practice improvement and outcome monitoring.

In‑Person Evaluations Not Required When Examination is “Equal or Superior to an In‑Person Examination.” The NCMB has proposed to remove language that required an examination via telemedicine provide “the same information…as if the exam had been performed face to face,” and instead suggests that an physical examination would not be required if he or she “employs technology and peripherals sufficient to provide an examination that is equal or superior to an inperson examination.” This change raises a number of questions as to how this standard may be satisfied. In this regard, it is noteworthy that that the revisions to the position statement did not remove a statement that telemedicine may require another licensed professional to be available to provide physical findings in order to complete an appropriate assessment, again suggesting that information typically obtained via a physical examination may still be required.

Accordingly, while it could be interpreted that practitioners have more flexibility to determine treatment via telemedicine, it also provides a high standard for telemedicine providers to meet without specifying how such a standard would be satisfied.

Patient and Practitioner Identification. The revisions also propose to no longer require that a practitioner practicing telemedicine have “some means of verifying” patient identity, but rather simply require that a practitioner should both verify the identity and location of a potential patient and provide the patient his or her own name, location and professional credentials.

Prescribing. The proposed position statement contains a new “Prescribing” section, which requires practitioners to practice telemedicine in accordance with the NCMB’s prescribing policy (discussed further below) and specifically cautions practitioners that prescribing controlled substances via telemedicine for the treatment of pain is “disfavored.”

Medical Records. Proposed additions serve as a reminder that the current standards of care regarding communication and the transfer of medical records to a primary care provider or facility also apply to practitioners practicing telemedicine.

Contact with Patients before Prescribing

As in the telemedicine position statement, the NCMB statement on prescribing has traditionally emphasized the standard of care as the guiding principal with respect to prescribing medications. While the NCMB continues to state that prescribing under certain circumstances is inappropriate, the proposed changes include an acknowledgement that prescribing drugs to patients is permissible if an evaluation is performed “to the extent necessary for an accurate diagnosis.” In addition, the proposed changes would explicitly state that telemedicine is included in the list of examples of circumstances in which prescribing without an inperson, physical examination may be appropriate. Specifically, the proposed revisions allow “an appropriate prescription in a telemedicine encounter where the threshold information to make an accurate diagnosis has been obtained.” Again, this raises questions as to how such a standard might be met.

Implications

The NCMB appears to be opening the door for telemedicine providers to potentially be able to meet the standard of care without an in person examination (but rather, through the appropriate use of technology); however, at the same time, it is reaffirming that the standard of care is not different. Ultimately, this appears to place the responsibility squarely on practitioners to distinguish those situations in which treatment of a patient via telemedicine is appropriate based on a patient’s clinical presentation (and how such telemedicine occurs) and when it is not.

The short, yet significant, revisions to the prescribing position statement contemplate that prescribing for a patient with whom the practitioner has never had a facetoface visit may be permitted if the practitioner determines that sufficient information has been obtained. However, it leaves open the question as to what constitutes obtaining sufficient information.

Moreover, the NCMB specifically stated that prescribing controlled substances via telemedicine is disfavored. In addition, NCMB has not changed its position with regards to prescribing based solely on an Internet questionnaire or a telephone conversation, which the proposed statement still states is inappropriate.

In sum, the proposed revisions to both position statements potentially provide practictioners additional flexibility, but the premise remains unchanged: the use of telemedicine to treat and diagnose illness and prescribe to patients is appropriate in cases in which a practitioner determines that he or she can meet the standard of care and appropriately care for a patient from a distance, except when it involves controlled substances.

While flexibility will be welcomed by practitioners, clarity is equally important. Hopefully, following the comment period, the NCMB will attempt to draw more brightline standards.

Comments

The proposed revisions to the telemedicine and prescribing position statements can be viewed here and here.

The NCMB is soliciting comments regarding the proposed revisions to both position statements. Comments may be emailed to telemedicine@ncmedboard.org. Please indicate “telemedicine” in the subject line. Comments are due by the end of business on November 5, 2015.

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.

© K&L Gates LLP | Attorney Advertising

Written by:

K&L Gates LLP
Contact
more
less

K&L Gates LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.