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SB710 SUB1 Senate Bill 710 History

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Key: Green = existing Code. Red = new code to be enacted

WEST virginia legislature

2020 regular session

Committee Substitute

for

Senate Bill 710

Senators Azinger, Cline, Maroney, and Roberts, original sponsors

[Originating in the Committee on Health and Human Resources; reported on February 21, 2020]

 

 

A BILL to amend and reenact §30-3-13a of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §30-3-13b; to amend and reenact §30-14-12d of said code; and to amend said code by adding thereto a new section, designated §30-14-12e, all relating to practice of telemedicine; establishing a pilot program for members of the Public Employees Insurance Agency; setting a sunset date for pilot program; providing for use of audio-only engagement in certain circumstances; and providing for an independent audit.

Be it enacted by the Legislature of West Virginia:


Article 3. West Virginia Medical Practice Act.

§30-3-13a. Telemedicine practice; requirements; exceptions; definitions; rulemaking.


(a) Definitions. — For the purposes of this section:

(1) “Chronic nonmalignant pain” means pain that has persisted after reasonable medical efforts have been made to relieve the pain or cure its cause and that has continued, either continuously or episodically, for longer than three continuous months. “Chronic nonmalignant pain” does not include pain associated with a terminal condition or illness or with a progressive disease that, in the normal course of progression, may reasonably be expected to result in a terminal condition or illness.

(2) “Physician” means a person licensed by the West Virginia Board of Medicine to practice allopathic medicine in West Virginia.

(3) “Store and forward telemedicine” means the asynchronous, computer-based communication of medical data or images from an originating location to a physician or podiatrist at another site for the purpose of diagnostic or therapeutic assistance.

(4) “Telemedicine” means the practice of medicine using tools such as electronic communication, information technology, store and forward telecommunication, or other means of interaction between a physician or podiatrist in one location and a patient in another location, with or without an intervening health care provider.

(5) “Telemedicine technologies” means technologies and devices which enable secure electronic communications and information exchange in the practice of telemedicine, and typically involve the application of secure real-time audio/video conferencing or similar secure video services, remote monitoring, or store and forward digital image technology to provide or support health care delivery by replicating the interaction of a traditional in-person encounter between a physician or podiatrist and a patient.

(b) Licensure. —

(1) The practice of medicine occurs where the patient is located at the time the telemedicine technologies are used.

(2) A physician or podiatrist who practices telemedicine must be licensed as provided in this article.

(3) This section does not apply to:

(A) An informal consultation or second opinion, at the request of a physician or podiatrist who is licensed to practice medicine or podiatry in this state, provided that the physician or podiatrist requesting the opinion retains authority and responsibility for the patient’s care; and

(B) Furnishing of medical assistance by a physician or podiatrist in case of an emergency or disaster, if no charge is made for the medical assistance.

(c) Physician-patient or podiatrist-patient relationship through telemedicine encounter. —

(1) Except as provided in §30-3-13b of this code, a physician-patient or podiatrist-patient relationship may not be established through:

(A) Audio-only communication;

(B) Text-based communications such as e-mail, Internet questionnaires, text-based messaging, or other written forms of communication; or

(C) Any combination thereof.

(2) If an existing physician-patient or podiatrist-patient relationship does not exist prior to the utilization to telemedicine technologies, or if services are rendered solely through telemedicine technologies, a physician-patient or podiatrist-patient relationship may only be established:

(A) Through the use of telemedicine technologies which incorporate interactive audio using store and forward technology, real-time videoconferencing, or similar secure video services during the initial physician-patient or podiatrist-patient encounter; or

(B) For the practice of pathology and radiology, a physician-patient relationship may be established through store and forward telemedicine or other similar technologies.

(3) Once a physician-patient or podiatrist-patient relationship has been established, either through an in-person encounter or in accordance with subdivision (2) of this subsection, the physician or podiatrist may utilize any telemedicine technology that meets the standard of care and is appropriate for the patient presentation.

(d) Telemedicine practice. — A physician or podiatrist using telemedicine technologies to practice medicine or podiatry shall:

(1) Verify the identity and location of the patient;

(2) Provide the patient with confirmation of the identity and qualifications of the physician or podiatrist;

(3) Provide the patient with the physical location and contact information of the physician;

(4) Establish or maintain a physician-patient or podiatrist-patient relationship that conforms to the standard of care;

(5) Determine whether telemedicine technologies are appropriate for the patient presentation for which the practice of medicine or podiatry is to be rendered;

(6) Obtain from the patient appropriate consent for the use of telemedicine technologies;

(7) Conduct all appropriate evaluations and history of the patient consistent with traditional standards of care for the patient presentation;

(8) Create and maintain health care records for the patient which justify the course of treatment and which verify compliance with the requirements of this section; and

(9) The requirements of subdivisions (1) through (8), inclusive, of this subsection do not apply to the practice of pathology or radiology medicine through store and forward telemedicine.

(e) Standard of care. — The practice of medicine or podiatry provided via telemedicine technologies, including the establishment of a physician-patient or podiatrist-patient relationship and issuing a prescription via electronic means as part of a telemedicine encounter, are subject to the same standard of care, professional practice requirements, and scope of practice limitations as traditional in-person physician-patient or podiatrist-patient encounters. Treatment, including issuing a prescription, based solely on an online questionnaire, does not constitute an acceptable standard of care.

(f) Patient records. — The patient record established during the use of telemedicine technologies shall be accessible and documented for both the physician or podiatrist and the patient, consistent with the laws and legislative rules governing patient health care records. All laws governing the confidentiality of health care information and governing patient access to medical records shall apply to records of practice of medicine or podiatry provided through telemedicine technologies. A physician or podiatrist solely providing services using telemedicine technologies shall make documentation of the encounter easily available to the patient, and subject to the patient’s consent, to any identified care provider of the patient.

(g) Prescribing limitations. —

(1) A physician or podiatrist who practices medicine to a patient solely through the utilization of telemedicine technologies may not prescribe to that patient any controlled substances listed in Schedule II of the Uniform Controlled Substances Act.

(2) The prescribing limitations in this subsection do not apply when a physician is providing treatment to patients who are minors, or if 18 years of age or older, who are enrolled in a primary or secondary education program and are diagnosed with intellectual or developmental disabilities, neurological disease, Attention Deficit Disorder, Autism, or a traumatic brain injury in accordance with guidelines as set forth by organizations such as the American Psychiatric Association, the American Academy of Child and Adolescent Psychiatry, or the American Academy of Pediatrics. The physician must maintain records supporting the diagnosis and the continued need of treatment.

(3) The prescribing limitations in this subsection do not apply to a hospital, excluding the emergency department, when a physician submits an order to dispense a controlled substance, listed in Schedule II of the Uniform Controlled Substances Act, to a hospital patient for immediate administration in a hospital.

(4) A physician or podiatrist may not prescribe any pain-relieving controlled substance listed in Schedules II through V of the Uniform Controlled Substance Act as part of a course of treatment for chronic nonmalignant pain solely based upon a telemedicine encounter.

(5) A physician or health care provider may not prescribe any drug with the intent of causing an abortion. The term “abortion” has the same meaning ascribed to it in §16-2F-2 of this code.

(h) Exceptions. — This article does not prohibit the use of audio-only or text-based communications by a physician or podiatrist who is:

(1) Responding to a call for patients with whom a physician-patient or podiatrist-patient relationship has been established through an in-person encounter by the physician or podiatrist;

(2) Providing cross coverage for a physician or podiatrist who has established a physician-patient or podiatrist-patient relationship with the patient through an in-person encounter; or

(3) Providing medical assistance in the event of an emergency.

(i) Rulemaking. — The West Virginia Board of Medicine and West Virginia Board of Osteopathic Medicine may propose joint rules for legislative approval in accordance with §29A-3-1 et seq. of this code to implement standards for and limitations upon the utilization of telemedicine technologies in the practice of medicine and podiatry in this state.

(j) Preserving traditional physician-patient or podiatrist-patient relationship. — Nothing in this section changes the rights, duties, privileges, responsibilities, and liabilities incident to the physician-patient or podiatrist-patient relationship, nor is it meant or intended to change in any way the personal character of the physician-patient or podiatrist-patient relationship. This section does not alter the scope of practice of any health care provider or authorize the delivery of health care services in a setting, or in a manner, not otherwise authorized by law.


§30-3-13b. Pilot program for members of the Public Employees Insurance Agency established.

(a) Notwithstanding any provision of this code to the contrary, a pilot program is established and to be administered by the Public Employees Insurance Agency for the benefit of their members. For purposes of this pilot program, a physician licensed pursuant to §30-3-1 et seq. of this code may use audio-only communications to render associated care while treating members of the Public Employees Insurance Agency. This pilot program shall authorize the use of audio-only telemedicine technologies, as that term is defined in §30-3-13a of this code.

(b) The use of audio-only telemedicine technology is authorized if:

(1) The patient is a plan member of the Public Employees Insurance Agency;

(2) The physician determines that based upon the patient’s presentation, the technology is sufficient to provide necessary information to provide medical services to the patient;

(3) In the physician’s medical opinion, the audio-only technology meets the standard of care;

(4) The patient shall visit a primary care physician within 12 months of using the telemedicine service;

(5) If the patient fails to visit a primary care physician within 12 months of using the telemedicine service, then the telemedicine service will no longer be available to the patient until an in-person primary care visit is obtained; and

(6) A patient can have no more than three consecutive telemedicine consultations without an in-person primary care visit.

(c) A physician who participates in the practice of telemedicine pursuant to the provisions of this section shall not prescribe controlled substance medications listed in Schedules II through V of the Uniform Controlled Substances Act to the patient until such time as the physician has evaluated the patient in person or pursuant to the provisions of §30-3-13a(c)(2)(A) of this code.

(d) A physician who participates in an audio-only communication shall have established a collaborative agreement with a primary care physician located within a 50-mile radius of the patient’s primary residence.  A physician prescribing care by means of audio-only telemedicine during the encounter shall advise the patient to follow up with that primary care physician within 15 days of the establishing audio-only encounter.

(e) The physician shall document in the patient’s medical record the following:

(1) His or her rationale for his or her medical opinion that audio-only technology meets the appropriate standard of care;

(2) That he or she has engaged in a collaborative agreement with a primary care physician located within a 50-mile radius of the patient’s primary residence;

(3) That he or she has advised the patient to seek further medical treatment with the primary care physician with whom the physician has entered into a collaborative relationship;

(4) Any other information the physician deems necessary in his or her medical opinion; and

(5) The information collected in this subsection shall be transmitted to the patient’s primary care physician or the physician with whom the physician has entered into a collaborative relationship within five business days of the telemedicine consult. 

(f) An independent audit shall be conducted by a medical school or university located in the state after the first year of the two-year pilot program. The Public Employees Insurance Agency shall select the school to conduct the audit and the telemedicine vendor shall pay any costs associated with the audit. The vendor shall receive credit, up to the cost of the audit, for cost savings identified as a result of the audit. The audit shall evaluate the efficacy, access to care, standard of care, patient outcomes, utilization trends, and financial feasibility of the pilot program. The West Virginia Board of Medicine shall provide input to the audit. The audit shall be presented to the Legislative Oversight Commission on Health and Human Resources Accountability as set forth in §16-29E-1 et seq. of this code prior to the end of the second year of the pilot program.

(g) The pilot program established by this section shall terminate two years from the effective date of this section unless further authorized by act of the Legislature.

Article 14. Osteopathic Physicians and Surgeons.


§30-14-12d. Telemedicine practice; requirements; exceptions; definitions; rulemaking.

(a) Definitions. — For the purposes of this section:

(1) “Chronic nonmalignant pain” means pain that has persisted after reasonable medical efforts have been made to relieve the pain or cure its cause and that has continued, either continuously or episodically, for longer than three continuous months. “Chronic nonmalignant pain” does not include pain associated with a terminal condition or illness or with a progressive disease that, in the normal course of progression, may reasonably be expected to result in a terminal condition or illness.

(2) “Physician” means a person licensed by the West Virginia Board of Osteopathic Medicine to practice osteopathic medicine in West Virginia.

(3) “Store and forward telemedicine” means the asynchronous, computer-based communication of medical data or images from an originating location to a physician at another site for the purpose of diagnostic or therapeutic assistance.

(4) “Telemedicine” means the practice of medicine using tools such as electronic communication, information technology, store and forward telecommunication, or other means of interaction between a physician in one location and a patient in another location, with or without an intervening health care provider.

(5) “Telemedicine technologies” means technologies and devices which enable secure electronic communications and information exchange in the practice of telemedicine, and typically involve the application of secure real-time audio/video conferencing or similar secure video services, remote monitoring, or store and forward digital image technology to provide or support health care delivery by replicating the interaction of a traditional in-person encounter between a physician and a patient.

(b) Licensure. —

(1) The practice of medicine occurs where the patient is located at the time the telemedicine technologies are used.

(2) A physician who practices telemedicine must be licensed as provided in this article.

(3) This section does not apply to:

(A) An informal consultation or second opinion, at the request of a physician who is licensed to practice medicine in this state, provided that the physician requesting the opinion retains authority and responsibility for the patient’s care; and

(B) Furnishing of medical assistance by a physician in case of an emergency or disaster if no charge is made for the medical assistance.

(c) Physician-patient relationship through telemedicine encounter. —

(1) Except as provided in §30-14-12e of this code, a physician-patient relationship may not be established through:

(A) Audio-only communication;

(B) Text-based communications such as e-mail, Internet questionnaires, text-based messaging, or other written forms of communication; or

(C) Any combination thereof.

(2) If an existing physician-patient relationship is not present prior to the utilization to telemedicine technologies, or if services are rendered solely through telemedicine technologies, a physician-patient relationship may only be established:

(A) Through the use of telemedicine technologies which incorporate interactive audio using store and forward technology, real-time videoconferencing, or similar secure video services during the initial physician-patient encounter; or

(B) For the practice of pathology and radiology, a physician-patient relationship may be established through store and forward telemedicine or other similar technologies.

(3) Once a physician-patient relationship has been established, either through an in-person encounter or in accordance with subdivision (2) of this subsection, the physician may utilize any telemedicine technology that meets the standard of care and is appropriate for the patient presentation.

(d) Telemedicine practice. — A physician using telemedicine technologies to practice medicine shall:

(1) Verify the identity and location of the patient;

(2) Provide the patient with confirmation of the identity and qualifications of the physician;

(3) Provide the patient with the physical location and contact information of the physician;

(4) Establish or maintain a physician-patient relationship which conforms to the standard of care;

(5) Determine whether telemedicine technologies are appropriate for the patient presentation for which the practice of medicine is to be rendered;

(6) Obtain from the patient appropriate consent for the use of telemedicine technologies;

(7) Conduct all appropriate evaluations and history of the patient consistent with traditional standards of care for the patient presentation;

(8) Create and maintain health care records for the patient which justify the course of treatment and which verify compliance with the requirements of this section; and

(9) The requirements of subdivisions (1) through (7), inclusive, of this subsection do not apply to the practice of pathology or radiology medicine through store and forward telemedicine.

(e) Standard of care. — The practice of medicine provided via telemedicine technologies, including the establishment of a physician-patient relationship and issuing a prescription via electronic means as part of a telemedicine encounter, are subject to the same standard of care, professional practice requirements and scope of practice limitations as traditional in-person physician-patient encounters. Treatment, including issuing a prescription, based solely on an online questionnaire does not constitute an acceptable standard of care.

(f) Patient records. — The patient record established during the use of telemedicine technologies shall be accessible and documented for both the physician and the patient, consistent with the laws and legislative rules governing patient health care records. All laws governing the confidentiality of health care information and governing patient access to medical records shall apply to records of practice of medicine provided through telemedicine technologies. A physician solely providing services using telemedicine technologies shall make documentation of the encounter easily available to the patient, and subject to the patient’s consent, to any identified care provider of the patient.

(g) Prescribing limitations. —

(1) A physician or podiatrist who practices medicine to a patient solely through the utilization of telemedicine technologies may not prescribe to that patient any controlled substances listed in Schedule II of the Uniform Controlled Substances Act.

(2) The prescribing limitations in this subsection do not apply when a physician is providing treatment to patients who are minors, or if 18 years of age or older, who are enrolled in a primary or secondary education program and are diagnosed with intellectual or developmental disabilities, neurological disease, Attention Deficit Disorder, Autism, or a traumatic brain injury in accordance with guidelines as set forth by organizations such as the American Psychiatric Association, the American Academy of Child and Adolescent Psychiatry, or the American Academy of Pediatrics. The physician must maintain records supporting the diagnosis and the continued need of treatment.

(3) The prescribing limitations in this subsection do not apply to a hospital, excluding the emergency department, when a physician submits an order to dispense a controlled substance, listed in Schedule II of the Uniform Controlled Substances Act, to a hospital patient for immediate administration in a hospital.

(4) A physician or podiatrist may not prescribe any pain-relieving controlled substance listed in Schedules II through V of the Uniform Controlled Substance Act as part of a course of treatment for chronic nonmalignant pain solely based upon a telemedicine encounter.

(5) A physician or health care provider may not prescribe any drug with the intent of causing an abortion. The term “abortion” has the same meaning ascribed to it in §16-2F-2 of this code.

(h) Exceptions. — This section does not prohibit the use of audio-only or text-based communications by a physician who is:

(1) Responding to a call for patients with whom a physician-patient relationship has been established through an in-person encounter by the physician;

(2) Providing cross coverage for a physician who has established a physician-patient or relationship with the patient through an in-person encounter; or

(3) Providing medical assistance in the event of an emergency.

(i) Rulemaking. — The West Virginia Board of Medicine and West Virginia Board of Osteopathic Medicine may propose joint rules for legislative approval in accordance with §29A-3-1 et seq. of this code to implement standards for and limitations upon the utilization of telemedicine technologies in the practice of medicine in this state.

(j) Preservation of the traditional physician-patient relationship. — Nothing in this section changes the rights, duties, privileges, responsibilities, and liabilities incident to the physician-patient relationship, nor is it meant or intended to change in any way the personal character of the physician-patient relationship. This section does not alter the scope of practice of any health care provider or authorize the delivery of health care services in a setting, or in a manner, not otherwise authorized by law.


§30-14-12e. Pilot program for members of the Public Employees Insurance Agency established.

(a) Notwithstanding any provision of this code to the contrary, a pilot program is established and to be administered by the Public Employees Insurance Agency for the benefit of their members. For purposes of this pilot program, a physician licensed pursuant to §30-14-1 et seq. of this code may use audio-only communications to render associated care while treating members of the Public Employees Insurance Agency. This pilot program shall authorize the use of audio-only telemedicine technologies as that term is defined in §30-14-12d of this code.

(b) The use of audio-only telemedicine technology is authorized if:

(1) The patient is a plan member of the Public Employees Insurance Agency;

(2) The physician determines that based upon the patient’s presentation the technology is sufficient to provide necessary information to provide medical services to the patient;

(3) In the physician’s medical opinion, the audio-only technology meets the standard of care; 

(4) The patient shall visit a primary care physician within 12 months of using the telemedicine service;

(5) If the patient fails to visit a primary care physician within 12 months of using the telemedicine service, then the telemedicine will no longer be available to the patient until an in-person primary care visit is obtained; and

(6) A patient can have not more than three consecutive telemedicine consultations without an in-person primary care visit.

(c) A physician who participates in the practice of telemedicine pursuant to the provisions of this section shall not prescribe controlled substance medications listed in Schedules II through V of the Uniform Controlled Substances Act to the patient until such time as the physician has evaluated the patient in person or pursuant to the provisions of §30-14-12d(c)(2)(A) of this code.

(d) A physician who participates in an audio-only communication shall establish a collaborative agreement with a primary care physician located within a 50-mile radius of the patient’s primary residence. A physician prescribing care by means of audio-only telemedicine during the establishing encounter shall advise the patient to follow up with that primary care physician within 15 days of the establishing audio-only encounter.

(e) The physician shall document in the patient’s medical record the following:

(1) His or her rationale for his or her medical opinion that audio-only technology meets the appropriate standard of care;

(2) That he or she has engaged in a collaborative agreement with a primary care physician located within a 50-mile radius of the patient’s primary residence;

(3) That he or she has advised the patient to seek further medical treatment with the primary care physician with whom the physician has entered into a collaborative relationship;

(4) Any other information the physician deems necessary in his or her medical opinion; and 

(5) The information collected in this subsection shall be transmitted to the patient’s primary care physician or the physician with whom the physician has entered into a collaborative relationship within five business days of the telemedicine consult.

(f) An independent audit shall be conducted by a medical school or university located in the state after the first year of the two-year pilot program. The Public Employees Insurance Agency shall select the school to conduct the audit and the telemedicine vendor shall pay any costs associated with the audit. The vendor shall receive credit, up to the cost of the audit, for cost savings identified as a result of the audit. The audit shall evaluate the efficacy, access to care, standard of care, patient outcomes, utilization trends, and financial feasibility of the pilot program. The West Virginia Board of Osteopathic Medicine shall provide input to the audit. The audit shall be presented to the Legislative Oversight Commission on Health and Human Resources Accountability as set forth in §16-29E-1 et seq. of this code prior to the end of the second year of the pilot program.

(g) The pilot program established by this section shall terminate two years from the effective date of this section unless further authorized by act of the Legislature.

 

 

NOTE: The purpose of this bill is to establish a pilot program to evaluate the efficacy and sustainability of telemedicine health services in this state.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

 

 

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