(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 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, audio only telephone calls, 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 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 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 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 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) A physician-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 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;
(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 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 §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.
(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: 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 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, of this code to implement standards for and limitations upon the utilization of telemedicine technologies in the practice of medicine in this state. The West Virginia Board of Medicine and the West Virginia Board of Osteopathic Medicine may promulgate emergency rules pursuant to the provisions of §29A-3-15 of this code to implement the provisions of the bill passed during the 2021 session of the Legislature.
(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.