by Elisa M. White, Vice President & General Counsel, Arkansas Hospital Association
Barriers have challenged the widespread adoption of telemedicine, even as the use of telehealth technologies for clinical diagnosis and treatment, care management, and health education has moved from an experimental venture to an integral part of our health system. Among those barriers are technological and financial issues, certainly, but legal concerns have also been a major obstacle to expansion.
As recently as 2015, Arkansas was ranked by national organizations as among the most restrictive telemedicine environments in the nation. But action by the Arkansas General Assembly this spring may help to expand the availability of telehealth in the state.
The definition of telemedicine may vary from state to state, and this definition often impacts state health policy. The Arkansas General Assembly now has provided a comprehensive definition in Act 203 of 2017, which goes into effect in early August.
Unlike the more narrow definition in prior law, Act 203 defines telemedicine as “the use of electronic information and communication technology to deliver healthcare services, including without limitation the assessment, diagnosis, consultation, treatment, education, care management, and self-management of a patient.”
The Act also explicitly includes “remote patient monitoring” and “store-and-forward technology” within the definition of telemedicine. Remote patient monitoring is the use of telehealth technology to gather health data and monitor patients outside of the usual clinical settings. It can be particularly useful for patients with chronic conditions such as diabetes. Store-and-forward technology is an alternative to “real time” audio/video interaction that involves sending health information (such as a questionnaire, image, test result, video, etc.) to the clinician for study and evaluation. Store-and-forward can take the place of a face-to-face interaction, or it may come before or after a consultation.
Much of the telemedicine debate in Arkansas has centered around the requirements for establishing a physician-patient relationship sufficient to support telemedicine services.
Prior to September 2016, Arkansas medical regulations required an initial in-person physical examination in order to establish a valid physician-patient relationship. Telemedicine services could not be provided without the existence of a previously existing physician-patient relationship.
Effective September 6, 2016, the Arkansas Medical Board amended its rules to allow an initial patient-physician relationship to be established through the use of real time audio and visual telemedicine technology that provides information “at least equal to” the information that would have been obtained by an in-person examination.
Then, in the 2017 legislative session, the Arkansas General Assembly passed Act 203 of 2017, which amended the state’s telemedicine laws to provide even broader availability of telehealth across the state. While prior law only addressed physician-provided telemedicine, the new law authorizes telemedicine services by other licensed providers.
The Arkansas Medical Board regulations remain significant, however, because other providers’ licensing boards are prohibited from issuing regulations that allow formation of a provider-patient relationship under circumstances that are less restrictive than those set forth by the Arkansas Medical Board.
Notably, the 2017 law maintains restrictions on certain mechanisms used in other states to establish physician-patient relationships. For example, some national companies use a care model that lets them receive a patient’s medical history, then allow the patient to talk by phone with a doctor the patient has not met about minor health issues.
Arkansas Act 203 states that a provider cannot form a relationship with a patient using an internet questionnaire, email, patient-generated medical history, audio-only communication (such as a telephone), text, fax or any combination of these. While Arkansas no longer is the most restrictive environment for telemedicine, this provision is still more restrictive than the laws found in many other states.
In addition to clarifying the requirements for establishing a patient-provider relationship, Act 203 also cleared the way for home-based telemedicine services. Prior Arkansas law prohibited patients from receiving telemedicine services outside of clinics or other health care facilities, but Act 203 modified the definition of “originating site” to allow services to be provided wherever the patient is located at the time of the telehealth consultation.
The Act also has implications for school-based telemedicine programs, requiring school-based programs that treat Medicaid recipients to use either the child’s regular primary care physician or a physician with a cross-coverage arrangement with the regular physician, or to have authorization from the child’s regular primary care physician.
While Act 203 certainly will help bring Arkansas law more in line with the laws applicable in other states (and hopefully permanently move us out of the “most restrictive state” category), our statutes probably will see further changes in future legislative sessions. As technology develops, both patient and provider demand are likely to spur increased use of telehealth. And the law will have to keep up.