United States: West Virginia's New Telemedicine Practice Standards & Remote Prescribing Laws

West Virginia Gov. Earl Ray Tomblin (D) signed into law, on March 24, 2016, a new bill (House Bill No. 4463) implementing a variety of telemedicine practice standards and remote prescribing rules in the Mountain State. Effective June 11, 2016, the bill passed the House and Senate unanimously, reflecting strong bi-partisan support. The new statute may potentially require the Board of Medicine to rewrite some of its current telemedicine rules to the extent the prior rules conflict with the controlling provisions of the statute. West Virginia's Medical Board previously issued a Telemedicine Position Statement in November, 2014.

The bill creates a new section in the West Virginia Code (§30-3-13a and 30-14-12d). Interested telemedicine companies and healthcare providers looking to offer telemedicine services in West Virginia should review the new statute and adjust your policies and processes accordingly.

  • Telemedicine. The law separates the definition of telemedicine into three parts:

    • Telemedicine is defined as 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 healthcare provider.
    • "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 healthcare delivery by replicating the interaction of a traditional in-person encounter between a physician and a patient.
    • "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.
  • Licensure. The practice of medicine occurs where the patient is located at the time the telemedicine technologies are used, and the physician must be appropriately licensed in West Virginia.
  • Second Opinions. The licensing requirement does not apply to "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."
  • Physician-Patient Relationship. Physicians utilizing telemedicine must establish a proper physician-patient relationship by, among other things, conducting an appropriate examination. Depending on the technology used, an in-person exam is not required. A physician-patient relationship may not be established through:

    • Audio-only communication;
    • Text-based communications such as e-mail, internet questionnaires, text-based messaging or other written forms of communication; or
    • Any combination thereof.
  • If an existing physician-patient relationship does not exist prior to the utilization to telemedicine technologies, or if services are rendered solely through telemedicine technologies, a physician-patient relationship may only be established:

    • 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
    • For the practice of pathology and radiology, a physician-patient relationship may be established through store and forward telemedicine or other similar technologies.
  • Once a physician-patient relationship has been established, either through an in-person encounter or in accordance with the requirements above, the physician may use any telemedicine technology that meets the standard of care and is appropriate for the particular patient presentation.
  • Audio-Only or Text-Based Communications. The law does not prohibit the use of audio-only or text-based communications by a physician who is:

    • Responding to call for patients with whom a physician-patient relationship has been established through an in-person encounter by the physician;
    • Providing cross coverage for a physician who has established a physician-patient relationship with the patient through an in-person encounter; or
    • Providing medical assistance in the event of an emergency situation.
  • Telemedicine Examinations. A physician using telemedicine technologies to practice medicine must observe the following rules:

    • Verify the identity and location of the patient;
    • Provide the patient with confirmation of the physician's identity and qualifications;
    • Provide the patient with the physician's physical location and contact information;
    • Establish (or maintain) a physician-patient relationship that conforms to the standard of care;
    • Determine whether telemedicine technologies are appropriate for the patient's particular condition;
    • Obtain the patient's consent for telemedicine;
    • Conduct all appropriate evaluations and history of the patient consistent with traditional standards of care for the patient's particular condition; and
    • Create and maintain healthcare records for the patient which justify the course of treatment.
    • Note: These eight requirements do not apply to the practice of pathology or radiology medicine through store and forward telemedicine.
  • Standard of Care. A physician who delivers healthcare services through telemedicine is held to the same standards of appropriate practice as those in traditional in-person settings. Treatment, including issuing a prescription, based solely on an online questionnaire, does not constitute an acceptable standard of care.
  • Remote Prescribing. Remote prescribing without a prior in-person exam is permitted, including prescriptions for controlled substances, subject to certain limitations.

    • A physician who practices medicine to a patient solely through the utilization of telemedicine technologies may not prescribe to that patient any Schedule II controlled substances.
    • A physician may not prescribe any pain-relieving controlled substance listed in Schedules II through V as part of a course of treatment for chronic non-malignant pain solely based upon a telemedicine encounter.
  • Informed Consent. The physician must obtain the patient's informed consent to telemedicine services.
  • Patient Records. A patient record must be created for every telemedicine visit. The maintenance and confidentiality of the records must be consistent with state and federal law. A physician solely providing services using telemedicine technologies must make the records "easily available" to the patient, and subject to the patient's consent, to any identified care provider of the patient.

West Virginia was the fifth state to enact the Interstate Medical Licensure Compact after the Governor signed the legislation into law last year. Currently, twelve states have enacted the Compact, including Alabama, Idaho, Illinois, Iowa, Minnesota, Montana, Nevada, South Dakota, Utah, Wisconsin and Wyoming. The Compact, which offers a streamlined licensing process for physicians interested in practicing medicine in multiple states, is expected to expand access to health care, especially to those in rural and underserved areas of the country, and facilitate new modes of health care delivery such as telemedicine. A number of state legislatures have introduced the model Compact legislation, bringing the total number of states that have introduced or enacted the legislation to 26. Bills are pending in Alaska, Arizona, Colorado, Kansas, New Hampshire, and Washington.

And yet, West Virginia still lacks a telehealth commercial insurance coverage law, which would have health plans cover services provided via telehealth if that same service is covered in an in-person setting. 29 states plus DC have enacted a commercial insurance coverage law for telehealth services.

A number of West Virginia hospitals and health care providers already offer telehealth services, and patients have been able to access virtual care as part of these health care delivery models. Surveys indicate health care executives are optimistic on the benefits offered by telehealth. The new law serves as express guidance to inform telehealth practitioners on how to operate within West Virginia and provide virtual care services to patients in the state.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Wilson Elser Moskowitz Edelman & Dicker LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Wilson Elser Moskowitz Edelman & Dicker LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions