The Louisiana State Board of Medical Examiners (LSBME) has recently published its final rules for the practice of telemedicine in Louisiana. The following is a summary of the important sections of the rules:
A Louisiana telemedicine physician must either have a telemedicine permit or a Louisiana license to practice. A telemedicine permit holder must have an agreement with a physician with a Louisiana physical location for follow-up care. The LSBME will require a written “affirmation” of the agreement.
The below, italicized content reflects the relevant portions of the new rule:
"...by physicians licensed to practice medicine in this state and those who hold a telemedicine permit issued by the board to practice medicine in this state via telemedicine."
“Therefore, no physician [without a Louisiana license] shall utilize telemedicine to provide medical services to patients located in this state unless the physician...holds a telemedicine permit and executes an affirmation …that he or she has an arrangement with one or more other physicians who maintain a physical practice location in this state to provide for referrals and follow-up care.”
“…holds a telemedicine permit and executes an affirmation…that he or she has an arrangement with one or more other physicians who maintain a physical practice location in this state to provide for referrals and follow-up care.”
N.B. While not explicitly required, it is a risk management best practice that the identified Louisiana physical location be a reasonable travel distance from the patient for referrals and follow-up care.
The new rules define the physician-patient relationship for purposes of telemedicine. ALL of the below elements must be present to be a “proper” telemedicine relationship:
- Verify patient identity and make the verification part of the medical record
- Conduct an appropriate examination (an appropriate examination does not require an in-person visit)
- Diagnose using accepted medical practices
- Discuss diagnosis, risks and benefits of treatment
- Make sure follow up care is available
- Create a medical record for the telemedicine visit
"Physician-Patient Relationship―physicians utilizing telemedicine shall establish a proper physician-patient relationship by:
a. verifying the identity of the individual requesting treatment. Appropriate contact and identifying information shall be made part of the medical record;
b. conducting an appropriate examination. The examination does not require an in-person visit if the technology is sufficient to provide the physician the pertinent clinical information reasonably necessary to practice at an acceptable level of skill and safety;
c. establishing a diagnoses through the use of accepted medical practices e.g., history, mental status, appropriate diagnostic and laboratory testing;
d. discussing the diagnoses and risks and benefits of various treatment options; insuring the availability for appropriate follow-up care; and creating and/or maintaining a medical record."
Telemedicine is defined as simultaneous communication, so any technology that provides for "asynchronous telemedicine" (the clinical information and imagery is collected and transmitted with the intention to be reviewed at the distal site at a later time) is not included in these rules. The technology must be secure. Telephone calls and email are not telemedicine.
"Neither a telephone conversation, an electronic mail message between a physician and a patient, [n]or a true consultation constitutes telemedicine for the purposes of this Part."
“Telemedicine―the practice of health care delivery, diagnosis, consultation, treatment, and transfer of medical data by a physician using interactive telecommunication technology that enables a physician and a patient at two locations separated by distance to interact via two-way video and audio transmissions simultaneously.
“Only secure communication technology shall be used for telemedicine. At a minimum, telemedicine technology shall comply with all state and federal laws and regulations for medical/health information privacy and security.”
N.B. As a risk management best practice, use encrypted technology.
The telemedicine physician may be anywhere. The telemedicine patient must be in Louisiana at the time of treatment. For most legal, regulatory and board licensing purposes, the medical care occurred in the state where the patient was located.
"Location of Participants. A physician using telemedicine may be at any location at the time the services are provided. A patient receiving medical services by telemedicine may be in any location in this state at the time that the services are received."
“No physician shall utilize telemedicine to provide care to a patient who is physically located outside of this state, unless the physician possesses lawful authority to do so by the licensing authority of the state in which the patient is located.”
The Louisiana telemedicine physician must, at least once, notify the patient of ALL of the following:
- The physicians name, license number, contact information and specialty
- How to get emergency or follow-up care
- How to get the telemedicine medical records, or how to transmit them to another provider
- What to do if the technology enabling the telemedicine fails
- The applicable privacy regulations
“Disclosures. Prior to utilizing telemedicine a physician shall insure that the following disclosures have been made to the patient and documented in the medical record. Such disclosures need not be made or documented more than once, except to update the information provided:
a. the name, Louisiana medical license number and contact information [address, telephone number(s)] of the physician;
b. the physician’s specialty or area of practice;
c. how to receive follow-up and emergency care;
d. how to obtain copies of medical records and/or insure transmission to another medical provider;
e. how to receive care in the event of a technology or equipment failure; and
f. notification of privacy practices concerning individually identifiable health information, consistent with state and federal laws and regulations.”
N.B. The Louisiana Administrative Code, La. Admin. Code title 46, Part XLV, § 7511, requires consent from patients for the use of telemedicine. These Administrative Code consent notification requirements differ from the LSBME Rule’s requirements. As a risk management best practice, all the elements from both should be combined in any documentation of consent or disclosures.
La. Admin. Code title 46, Part XLV, §7511. Informed Consent A. In addition to any informed consent and right to privacy and confidentiality that may be required by state or federal law or regulation, a physician shall insure that each patient to whom he or she provides medical services by telemedicine is:1. informed of the relationship between the physician and patient and the respective role of any other health care provider with respect to management of the patient; and 2. notified that he or she may decline to receive medical services by telemedicine and may withdraw from such care at any time.
A Louisiana telemedicine physician must have access to the patient’s medical records, and, if needed, be able to:
- Conduct an in-person visit, or refer to another physician for that purpose
- Use a “patient presenter” third person to assist
- Use standard tools, such as a stethoscope
- Arrange for diagnostic testing
“A physician utilizing telemedicine with respect to patients located in this state shall have:
access to the patient’s medical record;
1. if required by the standard of care applicable to the diagnosis or treatment of the patient’s complaints in a traditional (face-to-face) setting, the ability:
a. to utilize peripherals (such as otoscope and stethoscope);
b. to obtain diagnostic testing;
c. if necessary in the physician’s judgment, to access a patient presenter to assist with the telemedicine encounter; and
d. to conduct an in-person visit, or refer the patient to another physician for that purpose.
A Louisiana telemedicine physician must create and maintain medical records for every visit. The records must be available to the patient and to physician referrals within a “reasonable" period of time.
“Patient records shall be:
1. created and maintained for every telemedicine visit according to the same standards of care as in an in-person visit;
2. confidential and subject to all applicable state and federal laws and regulations relative to privacy and security of health information;
3. accessible by a patient and the physician consistent with all state and federal laws and regulations; and
4. made available to the patient or a physician to whom the patient may be referred within a reasonable period of time.”
N.B. While this regulation only requires that the records be made available in a reasonable time period, the federal HIPAA regulations and other state laws more specifically regulate how quickly a medical record should be available after a request. As a risk management best practice, treat telemedicine records in the same way as more traditional medical records, following all the applicable state and federal law when providing the record to a patient. Existing medical retention requirements are applicable to telemedicine medical records.
To issue any prescription via telemedicine, use the same standard of care as in a traditional setting. Telephone calls, emails and completed questionnaires are not sufficient.
"Standard of Care. The practice of medicine by telemedicine, including the issuance of any prescription via electronic means shall be held to the same prevailing and usually accepted standards of medical practice as those in traditional (face-to-face) settings. An online, electronic or written mail message, or a telephonic evaluation by questionnaire or otherwise, does not satisfy the standards of appropriate care."
A Louisiana telemedicine physician may not use telemedicine to treat obesity or non-cancer related chronic or intractable pain.
“No physician shall utilize telemedicine:
1. for the treatment of non-cancer related chronic or intractable pain…;
2. for the treatment of obesity…”
A yearly in-person visit (a face-to-face evaluation by physician at the same physical location as the patient) is required, in most cases, prior to prescribing a controlled substance. The LSBME may choose to make individual written exceptions based on a written request explaining the rationale for an exception.
“Controlled Substances. While in most instances the board believes that an in-person visit is required prior to the issuance of a prescription for any controlled substance, provided the physician can examine the patient via telemedicine technologies sufficient to make a diagnosis, controlled substances may be prescribed by telemedicine within the limitations of Subsection 7513C.”
“The board may grant an exception….in an individual case that is supported by a physician’s written application. If an exception is granted by the board it shall be stated in writing and specify the manner and extent to which the physician shall be authorized …”
“No physician shall utilize telemedicine…to authorize or order the prescription, dispensation or administration of any controlled substance unless;
a. the physician has had at least one in-person visit with the patient at a physical practice location in this state within the past year;
b. the prescription is issued for a legitimate medical purpose;
c. the prescription is in conformity with the same standard of care applicable to an in-person visit; and
d. the prescription is permitted by and in conformity with all applicable state and federal laws and regulations.”
The entire text of the new telemedicine rules can be viewed here.
For further insights from our subsidiary, Medical Interactive, into what notifications and consents the Louisiana telemedicine physician must give to the patient, click here.