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WEST virginia legislature
2024 regular session
Introduced
Senate Bill 499
By Senators Chapman and Karnes
[Introduced January 22, 2024; referred
to the Committee on Health and Human Resources]
A BILL to amend and reenact §30-1-26 of the Code of West Virginia, 1931, as amended; and to amend and reenact §30-3-13 and §30-3-13a of said code, all relating to permitting medical providers outside the State of West Virginia to practice telehealth and telemedicine in West Virginia, as was previously permitted under the COVID-19 state of emergency.
Be it enacted by the Legislature of West Virginia:
(a) For the purposes of this section:
"Abortifacient" means any chemical or drug prescribed or dispensed with the intent of causing an abortion.
"Established patient" means a patient who has received professional services, face-to-face, from the physician, qualified health care professional, or another physician or qualified health care professional of the exact same specialty and subspecialty who belongs to the same group practice, within the past three years.
"Health care practitioner" means a person authorized to practice under §30-3-1 et seq., §30-3E-1 et seq., §30-4-1 et seq., §30-5-1 et seq., §30-7-1 et seq., §30-7A-1 et seq., §30-8-1 et seq., §30-10-1 et seq., §30-14-1 et seq., §30-16-1 et seq., §30-20-1 et seq., §30-20A-1 et seq., §30-21-1 et seq., §30-23-1 et seq., §30-26-1 et seq., §30-28-1 et seq., §30-30-1 et seq., §30-31-1 et seq., §30-32-1 et seq., §30-34-1 et seq., §30-35-1 et seq., §30-36-1 et seq., §30-37-1 et seq. and any other person licensed under this chapter that provides health care services.
"Interstate telehealth services" means the provision of telehealth services to a patient located in West Virginia by a health care practitioner located in any other state or commonwealth of the United States.
"Registration" means an authorization to practice a health profession regulated by §30-1-1 et seq. of this code for the limited purpose of providing interstate telehealth services within the registrant's scope of practice.
"Telehealth services" means the use of synchronous or asynchronous telecommunications technology or audio only telephone calls by a health care practitioner to provide health care services, including, but not limited to, assessment, diagnosis, consultation, treatment, and monitoring of a patient; transfer of medical data; patient and professional health-related education; public health services; and health administration. The term does not include internet questionnaires, e-mail messages, or facsimile transmissions.
(b) Unless provided for by statute or legislative rule, a health care board, referred to in §30-1-1 et seq. of this code, shall propose an emergency rule for legislative approval in accordance with the provisions of §29A-3-15 et seq. of this code to regulate telehealth practice by a telehealth practitioner. The proposed rule shall consist of the following:
(1) The practice of the health care service occurs where the patient is located at the time the telehealth services are provided;
(2) The health care practitioner who practices telehealth shall be:
(A) Licensed in good standing in all states in which he or she is licensed and not currently under investigation or subject to an administrative complaint; and
(B) Registered as an interstate telehealth practitioner with the appropriate board in West Virginia;
(3) When the health care practitioner-patient relationship is established;
(4) The standard of care for the provision of telehealth services. The standard of care shall require that with respect to the established patient, the patient shall visit an in-person health care practitioner within 12 months of using the initial telemedicine service or the telemedicine service shall no longer be available to the patient until an in-person visit is obtained. This requirement may be suspended, in the discretion of the health care practitioner, on a case-by-case basis, and it does not to the following services: acute inpatient care, post-operative follow-up checks, behavioral medicine, addiction medicine, or palliative care;
(5) A prohibition of prescribing any controlled substance listed in Schedule II of the Uniform Controlled Substance Act, unless authorized by another section: Provided, That the prescribing limitations contained in this section do not apply to a physician or a member of the same group practice with an established patient;
(6) Establish the conduct of a registrant for which discipline may be imposed by the board of registration;
(7) Establish a fee, not to exceed the amount to be paid by a licensee, to be paid by the interstate telehealth practitioner registered in the state;
(8) A reference to the Board's discipline process; and
(9) A prohibition of prescribing or dispensing an abortifacient.
(c) A registration issued pursuant to the provisions of or the requirements of this section does not authorize a health care professional to practice from a physical location within this state without first obtaining appropriate licensure.
(d) By registering to provide interstate telehealth services to patients in this state, a health care practitioner is subject to:
(1) The laws regarding the profession in this state, including the state judicial system and all professional conduct rules and standards incorporated into the health care practitioner’s practice act and the legislative rules of registering board; and
(2) The jurisdiction of the board with which he or she registers to provide interstate telehealth services, including such board’s complaint, investigation, and hearing process.
(e) A health care professional who registers to provide interstate telehealth services pursuant to the provisions of or the requirements of this section shall immediately notify the board where he or she is registered in West Virginia and of any restrictions placed on the individual’s license to practice in any state or jurisdiction.
(f) A person currently licensed in this state is not subject to registration but shall practice telehealth in accordance with the provisions of this section and the rules promulgated thereunder.
(g) To the extent that medical providers outside the state were permitted to practice telemedicine in this state during the COVID-19 state of emergency, such providers may continue to practice telemedicine so long as the other provisions of this section and those of §30-3-13 and §30-3-13a of this code are followed.
(a) It is unlawful for any person who does not hold an active, unexpired license issued pursuant to this article, or who is not practicing pursuant to the licensure exceptions set forth in this section, to:
(1) Engage in the practice of medicine and surgery or podiatry in this state;
(2) Represent that he or she is a physician, surgeon or podiatrist authorized to practice medicine and surgery or podiatry in this state; or
(3) Use any title, word or abbreviation to indicate or induce others to believe that he or she is licensed to practice medicine and surgery or podiatry in this state.
(b) It is unlawful for any person who does not hold an active, unexpired license issued pursuant to this article to engage in the practice of telemedicine within this state. As used in this section, the "practice of telemedicine" means the practice of medicine using communication tools such as electronic communication, information technology or other means of interaction between a licensed health care professional in one location and a patient in another location, with or without an intervening health care provider, and typically involves secure real time audio/video conferencing or similar secure audio/video services, remote monitoring, interactive video and store and forward digital image or health data technology to provide or support health care delivery by replicating the interaction of a traditional in person encounter between a provider and a patient. The practice of telemedicine occurs in this state when the patient receiving health care services through a telemedicine encounter is physically located in this state.
(c) It is not unlawful for a person:
(1) Who is a licensed health care provider under this code to act within his or her scope of practice;
(2) Who is not a licensed health care professional in this state to provide first aid care in an emergency situation; or
(3) To engage in the bona fide religious tenets of any recognized church in the administration of assistance to the sick or suffering by mental or spiritual means.
(d) The following persons are exempt from the licensure requirements under this article:
(1) A person enrolled in a school of medicine approved by the Liaison Committee on Medical Education or by the board;
(2) A person enrolled in a school of podiatric medicine approved by the Council of Podiatry Education or by the board;
(3) A person engaged in graduate podiatric training in a program approved by the Council on Podiatric Education or by the board;
(4) A physician or podiatrist engaged in the performance of his or her official duties holding one or more licenses from another state or foreign country and who is a commissioned medical officer of, a member of or employed by:
(A) The United States Military;
(B) The Department of Defense;
(C) The United States Public Health Service; or
(D) Any other federal agency;
(5) A physician or podiatrist holding one or more unrestricted licenses granted by another state or foreign country serving as visiting medical faculty engaged in education, training or research duties at a medical school or institution recognized by the board for up to six months if:
(A) The physician does not engage in the practice of medicine and surgery or podiatry outside of the auspices of the sponsoring school or institution; and
(B) The sponsoring medical school or institution provides prior written notification to the board including the physician's name, all jurisdictions of licensure and the beginning and end date of the physician’s visiting medical faculty status;
(6) A physician or podiatrist holding one or more unrestricted licenses granted by another state present in the state as a member of an air ambulance treatment team or organ harvesting team;
(7) A physician or podiatrist holding one or more unrestricted licenses granted by another state or foreign country providing a consultation on a singular occasion to a licensed physician or podiatrist in this state, whether the consulting physician or podiatrist is physically present in the state for the consultation or not;
(8) A physician or podiatrist holding one or more unrestricted licenses granted by another state or foreign country providing teaching assistance, in a medical capacity, for a period not to exceed seven days;
(9) A physician or podiatrist holding one or more unrestricted licenses granted by another state or foreign country serving as a volunteer in a noncompensated role for a charitable function for a period not to exceed seven days; and
(10) A physician or podiatrist holding one or more unrestricted licenses granted by another state or foreign country providing medical services to a college or university affiliated and/or sponsored sports team or an incorporated sports team if:
(A) He or she has a written agreement with that sports team to provide care to team members, band member, cheerleader, mascot, coaching staff and families traveling with the team for a specific sporting event, team appearance or training camp occurring in this state;
(B) He or she may only provide care or consultation to team members, coaching staff and families traveling with the team no longer than seven consecutive days per sporting event;
(C) He or she is not authorized to practice at a health care facility or clinic, acute care facility or urgent care center located in this state, but the physician may accompany the patient to the facility and consult; and
(D) The physician or podiatrist may be permitted, by written permission from the executive director, to extend his or her authorization to practice medicine for a maximum of seven additional consecutive days if the requestor shows good cause for the extension.
(e) A physician or podiatrist who does not hold a license issued by the board and who is practicing medicine in this state pursuant to the exceptions to licensure set forth in this section may practice in West Virginia under one or more of the licensure exceptions for no greater than a cumulative total of thirty days in any one calendar year.
(f) The executive director shall send by certified mail to a physician not licensed in this state a written order that revokes the privilege to practice medicine under this section if the executive director finds good cause to do so. If no current address can be determined, the order may be sent by regular mail to the physician’s last known address.
(g) A person who engages in the unlawful practice of medicine and surgery or podiatry while holding a license issued pursuant to this article which has been classified by the board as expired for 90 ninety days or fewer is guilty of a misdemeanor and, upon conviction, shall be fined not more than $5,000 or confined in jail not more than twelve months, or both fined and confined.
(h) A person who is found to be engaging in the practice of medicine and: (1) Has never been licensed by the board under this article; (2) holds a license which has been classified by the board as expired for greater than 90 ninety days; or (3) holds a license which has been placed in inactive status, revoked, suspended or surrendered to the board is guilty of a felony and, upon conviction, shall be fined not more than $10,000 or imprisoned in a correctional facility for not less than one year nor more than five years or both fined and imprisoned.
(i) Upon a determination by the board that any report or complaint submitted to it concerns allegations of the unlawful practice of medicine and surgery by an individual who is licensed under another article of this chapter, the board shall refer the complaint to the appropriate licensing authority. Additionally, whenever the board receives credible information that an individual is engaging in the unlawful practice of medicine and surgery or podiatry in violation of this section, the board may report such information to the appropriate state and/or federal law enforcement authority and/or prosecuting attorney.
(j) To the extent that medical providers outside the state were permitted to practice telemedicine in this state during the COVID-19 state of emergency, such providers may continue to practice telemedicine so long as the other provisions of this section and §30-3-13a of this code are followed.
(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 or registered 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, audio only telephone calls, 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 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, or audio only telephone calls 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 or registration. –
(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 or registered as provided in §30-1-1 et seq. of this code.
(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) A physician-patient or podiatrist-patient relationship may not be established through:
Text-based communications such as e-mail, Internet questionnaires, text-based messaging, or other written forms of communication.
(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;
(B) For the practice of pathology and radiology, a physician-patient relationship may be established through store and forward telemedicine or other similar technologies; or
(C) Through the use of audio-only calls or conversations that occur in real time. Patient communication though audio-visual communication is preferable, if available or possible. Audio-only calls or conversations that occur in real time may be used to establish the physician-patient relationship.
(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 §30-3-13(a)(1) through §30-3-13(a)(8) of this code do not apply to the practice of pathology or radiology medicine through store and forward telemedicine.
(10) Out of state providers may practice telemedicine with patients in West Virginia so long as the other requirements of this section are satisfied.
(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: Provided, That the prescribing limitations contained in this section do not apply to a physician or a member of the same group practice with an established patient.
(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 Schedule II of the Uniform Controlled Substance Act as part of a course of treatment for chronic nonmalignant pain solely based upon a telemedicine encounter: Provided, That the prescribing limitations contained in this section do not apply to a physician or a member of the same group practice with an established patient.
(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, 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.
NOTE: The purpose of this bill is to permit the care of a patient by telemedicine across state lines.
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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