Get to Know the New D.C. Telemedicine Regulations
As of December 22, 2017, the District of Columbia’s first telemedicine regulations take effect. The regulations were proposed initially in February 2016, and again in July 2017, and were formally adopted in October 2017. Until now, the D.C. Board of Medicine laws didn’t directly address telemedicine, and the practice was governed according to a 2014 non-regulatory telemedicine policy. Healthcare providers and healthcare technology vendors interested in or currently engaged in the telemedicine industry in D.C. should be aware of the following key provisions in the new regulations:
Defining Telemedicine. The new D.C. regulation defines telemedicine as “[t]he 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.” (D.C. Mun. Regs. Tit. 17, § 4618).
Key Takeaway: This definition does not address modality, so physicians are not limited to real-time audio-visual interaction to qualify their interactions with patients as telemedicine—widening the scope of potentially reimbursable services. However, the regulations do require that healthcare providers have the current minimal technological capabilities to meet all standard of care requirements.
Patient evaluations. Using the appropriate standards of care, a 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 via telemedicine. If a physician-patient relationship does not include a prior in-person interaction with a patient, the physician may use real-time telemedicine (where “real-time” is defined as a system in which information is provided in such a way as to allow near immediate feedback) 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. D.C. licensed physicians will be able to rely on a patient evaluation performed by another D.C. licensed physician if the former is providing coverage for the latter.
Key Takeaway: You can use a real-time telemedicine encounter to establish the physician-patient relationship needed to diagnose and treat patients via telemedicine. Only one patient evaluation is required for a patient, even if there are multiple physicians diagnosing or treating that patient, as long as the physicians who have not personally performed the evaluation are covered for the physician who did. This will save physicians who jointly care for patients time and administrative burden otherwise created by the requirements to perform individual patient evaluations.
Licensure. Physicians rendering telemedicine services to patients located in D.C. must be licensed in D.C. Physicians who provide telemedicine services to patients located outside the District must meet the state licensure requirements of the state in which the patient is physically located.
Key Takeaway: Patient location, and not the location of the physician, matters.
Documentation and Confidentiality. Physicians are required to obtain and document patient consent, except when providing “interpretive services” (defined in the regulation as “official readings of images, tracings, or specimens through telemedicine. Interpretive services include remote, real-time monitoring of a patient being cared for within a health care facility or home-based setting”). Physicians must comply with local and federal laws and regulations governing the confidentiality and disclosure of medical records. All physician-patient communications (including those via e-mail and/or other electronic messaging service) must be documented and filed in the patient’s records. Additionally, in urgent situations, patients should be informed of alternate forms of communications.
Key Takeaway: Make sure consents are obtained before providing care via telemedicine, and treat telemedicine-derived patient records with the same standards of confidentiality as records created based on in person services rendered. Put in place a plan to incorporate patient communications into the medical record.
As adoption and regulation of telemedicine continue to expand, it important to consult a healthcare attorney with the experience and resources to help you grow your business while managing the evolving issues associated with this unique industry. If you have questions or concerns pertaining to healthcare technology, please Contact a Nixon Law Group attorney. Also, make sure to sign up for the NLG newsletter for the latest summaries and other healthcare happenings.
Nixon Law Group thanks Chelsea Ukoha, Law Clerk, for her contribution to this post.