Telemedicine Rules in D.C. Get Second Draft

by Foley & Lardner LLP
Contact

Telemedicine rules in the District of Columbia underwent a second round of revisions as the District of Columbia Department of Health issued a new set of proposed rules. The newly-revised proposed telemedicine rules, issued in July, replace the Department’s first draft of telemedicine regulations issued in early 2016, and incorporate comments submitted by a number of telehealth industry advocates. Other than a 2014 policy statement, the D.C. Medical Board’s current laws are silent as to telemedicine practice.

Changes in the Newly Revised Telemedicine Rules

Based upon the review of the public comments and its Telemedicine Workgroup recommendations, the Board of Medicine amended its initial proposed regulations for greater clarity and to eliminate unnecessary barriers. Here is a summary of the notable changes contained in the new rules:

  • Simplifying the definition of telemedicine by striking the following language: “Generally, telemedicine does not include an audio-only telephone conversations [sic], electronic mail, instant messaging conversations, or facsimile communications. Telemedicine typically involves the application of secure videoconferencing or store and forward technology to provide or support the delivery of healthcare by replicating the interaction of a traditional encounter in person between a licensee and patient.”
  • Revising the modality required to create a valid physician-patient relationship via telemedicine in the absence of any prior in-person exam.
    • The prior rule stated, “the physician shall use real-time auditory communications or real-time visual and auditory communications to allow a free exchange of protected health information between the patient and the physician performing the patient evaluation.”
    • The new proposed rule states “the physician may use real-time telemedicine to allow a free exchange of protected health information between the patient and the physician to establish the physician-patient relationship and perform the patient evaluation.” (emph. added)
    • The new rules also tweak the definition of “real-time” to mean “a system in which information is provided in such a way as to allow near immediate feedback.” The prior rule defined it as “simultaneously or quickly enough to allow two or more individuals to communicate.”
  • Requiring the physician be licensed to practice medicine in DC if the patient is located in DC, and eliminating the requirement that the physician be licensed in both the jurisdiction in which the physician is physically located and where the patient is physically located.
  • Replacing the word “face-to-face” with the term “in-person” to better describe that the physician and patient are in the physical presence of each other.
  • Eliminating certain requirements that the physician create specific telemedicine written policies and procedures.
  • Eliminating proposed definitions for terms that were not used in the regulation (e.g., group practice, consultative service).

What Telehealth Providers Need to Know

Here are the key takeaways health care providers, hospitals, and start-up companies looking to enter the D.C. market should consider if the proposed telemedicine rules are implemented without further changes:

  1. The proposed rules define telemedicine as “the practice of medicine by a licensed practitioner to provide patient care, treatment or services, between a licensee in one location and a patient in another location with or without an intervening health care provider, through the use of health information and technology communications, subject to the existing standards of care and conduct.”
  2. The rules are flexible on the modality and do not mandate the use of real-time audio-video technology for all telemedicine services.
  3. Valid Doctor-Patient Relationship.A physician may create a valid doctor-patient relationship via telemedicine, without the need for an in-person exam. When doing so, the physician “may use real-time telemedicine to allow a free exchange of protected health information between the patient and the physician to establish the physician-patient relationship and perform the patient evaluation.” Real-time means a system in which information is provided in such a way as to allow near immediate feedback.
  4. Telemedicine Exams. In all telemedicine use cases, the physician must perform a patient evaluation to establish diagnoses and identify underlying conditions or contraindications to recommended treatment options before providing treatment or prescribing medication for a patient utilizing the appropriate standards of care, except when performing interpretive services. (Interpretive services are “official readings of images, tracings, or specimens through telemedicine” including “remote, real-time monitoring of a patient being cared for within a health care facility or home-based setting”). A D.C. licensed physician may rely on a patient evaluation performed by another D.C. licensed physician if the former is providing coverage for the latter.
  5. Informed Consent.The rules require the physician to obtain and document patient consent, except when providing interpretive services. Patients must be informed of alternate forms of communication between the patient and the physician for urgent matters.
  6. Physician Licensure. Physicians providing telemedicine to patients located in D.C. must hold an active D.C. medical license.
  7. Standard of Care.Under the rules, a physician using telemedicine is held to the same standard of care as when making medical decisions in an in-person encounter with a patient.
  8. The rules allow prescribing of medications via telemedicine without an in-person exam, provided the patient evaluation meets the guidelines and is within the standard of care.
  9. Medical Records.The physician must create and maintain adequate medical records of the encounter. The physician must comply with D.C. and federal laws and regulations governing the confidentiality and disclosure of medical records. All relevant patient-physician, communications, including those done via an electronic method such as email or other electronic messaging system, shall be documented and filed in the patient’s medical record.

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

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.

© Foley & Lardner LLP | Attorney Advertising

Written by:

Foley & Lardner LLP
Contact
more
less

Foley & Lardner 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.