Effective September 4, 2016, the Arkansas Medical Board adopted an amendment to its Regulation 2.8 to allow for a proper physician-patient relationship to be established by a "face to face examination using real time audio and visual telemedicine technology that provides information at least equal to such information as would have been obtained by an in-person examination." On October 6, 2016, the Board also approved new Regulation 38, which creates standards for telemedicine practice in the state. As discussed in our previous Update, specific requirements of Regulation 38 incorporate elements that telemedicine services: (i) be held to the same standard of care as in-person services; (ii) incorporate arrangements for follow-up care if indicated; (iii) limit prescribing of controlled substances unless certain additional requirements are met; (iv) enable the availability to the patient of patient's medical record documenting the encounter upon request; (v) identify the physician and certain facts about the physician in advance of the telemedicine encounter; and (vi) establish protocols for referrals for emergency services. The approval of Regulation 38 was delayed due to disagreement over its original provision on store-and-forward technology, which clarified that the use of store-and-forward technology, such as X-rays, MRIs, and digital images, was not restricted, but that a patient completing a medical history online and forwarding it to a physician would not qualify as store-and-forward technology. The adopted rule deletes the statement that store-and-forward technology is not restricted. Regulation 38 will be considered by a legislative subcommittee on December 16, 2016, and, if approved, will become effective 10 days after it is sent to the Arkansas Secretary of State office. We also note that while not specifically referenced in the newly adopted regulations, telemedicine services in Arkansas are subject to other requirements set forth in the authorizing legislation Arkansas Code § 17-80-118, including limitations on the patient location (originating site), except in very limited circumstances necessitating that a patient be located at a physician's office or licensed health care facility.
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