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Iowa Healthcare Law Blog News & Updates on Legal, Policy, & Business Issues Facing the Health Care Industry in Iowa

IBM Proposed Telemedicine Rule – Practical Considerations in Physician Compliance

Posted in HIPAA, Iowa Board of Medicine, Telemedicine

The October 24, 2014 posting (last in this series) addresses practical considerations for physicians using telemedicine, in meeting several of the proposed rule’s requirements as well as the proposed rule’s specific requirements re: financial interests, links to internet sites, prohibited relationships with preferred pharmacies, and prohibited internet transactions for prescribing controlled substances.

Requirements (standards) for physicians – practical considerations.

Proposed rule 653-13.11(10) – Informed consent

Proposed rule 653-13.11(11) – Coordination of care

Proposed rule 653-13.11(12) – Follow-up care

Proposed rule 653-13.11(14) – Medical records

Summary. Physicians using telemedicine must (1) obtain and document the patient’s informed consent including consent for the use of telemedicine; (2) identify the patient’s medical home and/or treating physician and provide them a copy of the medical record; (3) be knowledgeable of local resources for providing follow-up care and ensure the patient has access to appropriate follow-up care following a telemedicine encounter; and (4) ensure a complete, accurate, and timely medical record for the patient when appropriate and, further, ensure the patient and/or the physician designated by the patient has timely access to all information obtained during the telemedicine encounter, including timely providing the patient with a summary of each telemedicine encounter upon request.

Considerations. These matters are appropriate activities for physicians in managing a patient’s care. As regulatory standards, however, it is important to determine if and how the specific requirements of these provisions can be satisfied by the physician using telemedicine. AMA policy H-480-946 on “Coverage and Payment for Telemedicine” addresses each of these components as appropriate to telemedicine delivery without ascribing specific responsibility for them to the physician using telemedicine. Can a physician meet the obligations of these rules through protocol adopted by, for instance, a hospital offering telemedicine services? It is important to confirm that actual practices now in place would – or would not – satisfy these proposed standards before the Iowa Board of Medicine (IBM) adopts them. The physician using telemedicine will be held accountable for meeting each requirement.

Financial interests – links to internet sites – relationships with preferred pharmacies prohibited.

Proposed rule 653-13.11(19)

Summary. Advertising or promotion of goods or products from which a physician licensee receives direct remuneration, benefits, or incentives (other than fees for medical services) is prohibited.

A physician licensee should not benefit from internet links they provide to patients for purposes of general health information; when providing links, physicians should be aware of implied endorsements offered from such sites.

Physicians may not have preferred relationships with any pharmacy. Physician licensees shall not transmit prescriptions to a specific pharmacy or recommend a pharmacy in exchange for any type of consideration or benefit from the pharmacy.

Considerations. These prohibitions, filed by the IBM as part of its proposed telemedicine, are generally applicable to all physician licensees and are not addressed to “physicians who use telemedicine.” These prohibitions are taken directly from the Federation of State Medical Board’s “Model Policy for the Appropriate Use of Telemedicine Technologies in the Practice of Medicine,” adopted by the FSMB in April 2014. These policies, to become disciplinary rules if adopted by the IBM, are matters that stand on their own. The IBM might consider filing separate notice of rulemaking on these specific provisions to assure fair notice of and full discussion on their impact upon all licensees, not only licensees using telemedicine.

Prescribing controlled substances – prohibited internet transactions.

Proposed rule 653-13.11(21)

Summary. Prescribing controlled substances to a patient based solely on an internet request, internet questionnaire, or a telephonic evaluation is prohibited.

Considerations. All physician licensees are subject to this proposed regulatory prohibition. Too, specific issues directed to online medical services merit focused discussion of their own. This provision should be separately noticed by the IBM to allow fair notice and opportunity for comment. Internet-based diagnostic and treatment services for low-risk medical conditions are now being promoted and seemingly well received in other states.

This prohibition addresses only prescribing controlled substances. Is it permissible, then, to prescribe non-controlled medications based solely on an internet request, internet questionnaire, or telephonic evaluation? How does this provision relate to proposed rule 13.11(8) which generally states that an internet questionnaire alone does not constitute an acceptable medical interview and physical exam for providing treatment, including issuing prescriptions, electronically or otherwise?

This prohibition on physician licensees very well may be appropriate. However, a proposed rule prohibiting this practice may be better evaluated on its own merits and not within the context of this already detailed rulemaking applicable to physicians using telemedicine.

This article is the final posting in this series on the Iowa Board of Medicine’s proposed standards of medical practice for physicians using telemedicine. We hope our comments foster discussion and, as may be appropriate, alternative approaches for these proposed physician disciplinary standards.

Telemedicine offers tremendous potential for increased access by Iowans to a wide range of highly skilled medical care as well as a dynamic environment for enhanced care communication and medical education. Many entities share responsibility for safe, competent, high quality telemedicine delivery. All parties, regardless of their positions on the proposed rules, want telemedicine to work well in Iowa.

We acknowledge the critical role the IBM plays in helping to assure competent and safe telemedicine delivery of medical care. At the same time, physicians subject to regulatory disciplinary standards must know what is required of them; must be reasonably capable of meeting regulatory expectations; and must not be inappropriately impeded by complex or confusing regulatory directives in pursuing this legitimate form of patient care delivery. The IBM’s rule proposal provides an excellent forum for understanding, discussion and debate in this evolving arena of health care delivery.

See our page dedicated to Telemedicine for all related articles, including our most current post.