WEST virginia legislature

2021 regular session

Introduced

Senate Bill 273

By Senators Blair (Mr. President) and Baldwin
[By Request of the Executive]

[Introduced February 13, 2021; Referred
to the Committee on Health and Human Resources]

A BILL to amend and reenact §30-3-13a of the Code of West Virginia, 1931, as amended, relating to telemedicine; expanding use of telemedicine to all medical personnel; allowing for audio-only telemedicine encounters; ensuring parity for telemedicine to match in-person coverage and fees; and limiting the ability of medical personnel professional licensure boards to restrict telemedicine.

Be it enacted by the Legislature of West Virginia:

ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.

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

(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 “Medical personnel” means a health professional who, by virtue of education, credentials, and experience, is permitted by state law to evaluate and care for patients within the scope of the professional’s licensure.

(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 medical personnel 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 medical personnel 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 Medical personnel 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 medical personnel who is licensed to practice medicine or podiatry in this state is permitted by state law to evaluate and care for patients within the scope of the professional’s licensure, provided that the physician or podiatrist medical personnel requesting the opinion retains authority and responsibility for the patient’s care; and

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

(c) Physician-patient or Podiatrist-patient relationship Patient relationship with medical personnel through telemedicine encounter. –

(1) A physician-patient or podiatrist-patient relationship patient relationship with medical personnel may not be established through:

(A) Audio-only communication;

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

(C) Any combination thereof.

(2) If an existing physician-patient or podiatrist-patient relationship patient relationship with medical personnel does not exist prior to the utilization to of telemedicine technologies, or if services are rendered solely through telemedicine technologies, a physician-patient or podiatrist-patient relationship patient relationship with medical personnel 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 medical personnel- physician-patient or podiatrist-patient encounter; or

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

(3) Once a physician-patient or podiatrist-patient relationship patient relationship with medical personnel has been established, either through an in-person encounter or in accordance with subdivision (2) of this subsection, the physician or podiatrist medical personnel 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 Medical personnel 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 medical personnel;

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

(4) Establish or maintain a physician-patient or podiatrist-patient relationship patient relationship with medical personnel 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 medical personnel 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 Medical personnel 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 Medical personnel 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 Medical personnel 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 Medical personnel 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) An insurance provider who offers an insurance product in this state, the Bureau for Medical Services, the West Virginia Children’s Health Insurance Program, and the Public Employees Insurance Agency shall provide the same coverage and fees for telemedicine visits as in-person visits.

 (i) Exceptions. –

This article does not prohibit the use of audio-only or text-based communications by a physician or podiatrist medical personnel who is:

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

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

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

(i) (j) 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) (k) Preserving traditional physician-patient or podiatrist-patient relationship patient relationship with the medical personnel. –

Nothing in this section changes the rights, duties, privileges, responsibilities, and liabilities incident to the physician-patient or podiatrist-patient relationship patient relationship with the medical personnel, nor is it meant or intended to change in any way the personal character of the physician-patient or podiatrist-patient relationship patient relationship with the medical personnel. 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.

(l) The boards of psychologists, nurses, medicine, osteopathic medicine, social workers, counselors, occupational therapists, physical therapists, and speech-language pathologists and audiologists shall not promulgate rules regarding telemedicine that are more restrictive than set forth in this section.

 

NOTE: The purpose of this bill is to expand the use of telemedicine by allowing medical personnel to participate in telemedicine visits, to ensure parity between telemedicine and in-person visits, and to restrict the ability of medical professional boards to restrict telemedicine beyond what is in this section.

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