Six Ways to Take Advantage of New Hampshire’s New Telemedicine Law

by Foley & Lardner LLP
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A physician in New Hampshire can now establish a valid doctor-patient relationship without needing a prior in-person exam. This is among several recent changes in New Hampshire’s telemedicine laws that offer new opportunities for telemedicine companies and healthcare providers, so long as they can quickly adapt their business models and finalize their contractual arrangements soon. The business potential also holds true for New Hampshire hospitals and health systems looking to solidify the engagement of their existing patient base or expand.

These six ways will help you refine your telehealth offerings under the new law, and give you a strategic advantage in being first to market:

  1. Build a model that requires licensing (or not). Out-of-state physicians providing services via telemedicine must be licensed in New Hampshire. Licensing exemptions are available (such as the consultation exception), and some companies have structured their telemedicine business models with this in mind. Whichever approach best fits your needs, take time to properly know the legal landscape (exemptions and otherwise), because New Hampshire has specific licensing laws on service specialties, such as teleradiology.
  2. Establish a provider-patient relationship. Providers need not conduct an in-person exam, but companies should select their telemedicine modalities and technologies knowing that New Hampshire prefers interactive synchronous communications. A valid doctor-patient relationship may be established through a “face-to-face 2-way real-time interactive communication” exam, along with a history, a diagnosis, a treatment plant, and documentation of all prescription drugs including name and dosage. There are several ways innovative companies have successfully incorporated this approach in their clinical processes to drive efficiencies, enhance care integration, and improve the user experience.
  3. Create care processes and protocols for treatment. Doing so for your telemedicine service lets practitioners apply the consistent standard of care across interactions. Telemedicine is broadly defined as the “use of audio, video, or other electronic media for the purpose of diagnosis, consultation, or treatment,” but expressly excludes the use of audio-only telephone or facsimile. This is a broad, flexible definition consistent with some of the more forward-thinking states.
  4. Consider remote prescribing. Explore opportunities to collaborate via contract or other arrangements with pharmacies, labs, and other post-consultation service providers in the patient care continuum. The new law allows remote prescribing, and prescribing medications is at the discretion of the provider so long as the prescribing is performed consistent with current standards of practice.
  5. Explore controlled substance telepsychiatry. Telepsychiatry groups should seriously consider medication management services in New Hampshire. Physicians may prescribe controlled substances, though limited to certain situations such as community mental health centers and opioid treatment programs. Remote prescribing of controlled substances in New Hampshire does require an in-person examination with subsequent in-person examinations no less than annually. The requirement of an in-person exam prior to remote prescribing controlled substances is also found under the Ryan Haight Act. However, there may be change coming on the federal level, as seen in the American Telemedicine Association’s recent letter to the DEA. Disclosure: Foley & Lardner’s telemedicine practice was a contributing author to the ATA’s letter.
  6. Maintain patient medical records. With the patient’s consent, you may forward the medical record to the patient’s primary care or treating provider, as appropriate. Providers should be certain to maintain medical records of the encounter.

The changes to New Hampshire laws remove a significant barrier to growth for telemedicine providers and businesses in the Granite State. Physicians will now have more reach and flexibility to serve patients, particularly those living in distant or rural locations. Studies continue to show how telemedicine can be a high quality, cost-effective care tool, eliminating travel time and increasing access, including for mental health needs.

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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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