South Carolina, in a move that is becoming increasingly common among various state legislatures (or their medical boards), is on the verge of completely re-writing its telemedicine law – including the often murky issue of when it is appropriate for physicians to prescribe medications (especially non-narcotic) via telemedicine visits in the absence of a prior in-person physical exam being performed by the prescribing physician.
On May 25, 2016, the South Carolina legislature sent to Governor Nikki Haley Senate Bill 1035, which facilitates the use of telemedicine by establishing certain recordkeeping requirements. SB 1035 also defines “telemedicine” and details the requirement of a physician-patient relationship, so as to allow the prescribing of medication when the physician-patient relationship is established solely via telemedicine.
More specifically, the bill provides the following details:
1. adhere to current standards for practice improvement and monitoring of outcomes and provide reports containing such information upon request of the board;
2. provide an appropriate evaluation prior to diagnosing and/or treating the patient utilizing technology sufficient to accurately diagnose and treat the patient or, in the alternative, use of a licensed healthcare professional as a telemedicine presenter is permitted in order to provide various physical findings the physician may need to complete an adequate assessment;
3. verify the identity and location of the patient and be prepared to inform the patient of the physician’s name, location, and professional credentials;
4. establish a diagnosis through the use of accepted medical practices, which may include patient history, mental status evaluation, physical examination, and appropriate diagnostic and laboratory testing in conformity with the applicable standard of care;
5. ensure the availability of appropriate follow-up care;
6. Schedule II and Schedule III prescriptions are not permitted unless specifically authorized by the board;
7. maintain a complete record of the patient’s care according to prevailing medical record standards that reflects an appropriate evaluation of the patient’s presenting symptoms;
8. maintain the confidentiality of the patient’s records;
9. have a valid, current South Carolina medical license; and
10. discuss with the patient the value of having a primary care medical home and provide assistance in identifying available options for a primary care medical home.
SB 1035 is set to take effect upon approval by the Governor (which, at the time of this entry, has not yet occurred).
How does the recent activity in South Carolina, and several other states, impact the bigger picture of telemedicine? For starters, as more states adopt standards for conducting telemedicine, a loose uniformity emerges amongst the states as to what the appropriate standard of care is when conducting telemedicine visits. The more familiar themes are: (1) stating exactly what is not permitted; (2) a telemedicine encounter must approximate an in-person visit (i.e. sufficient information must be secured in order to render a diagnosis and/or prescribe a medication for the patient); (3) the type of communication system that is required to be used; and (4) failure to adhere to the standard of care will be subject to discipline (which initially may result in a physician being subjected to more harsh penalties). Second, it appears that for most states (but not all) a reasonable recognition is taking hold that telemedicine is not a different form of medical care, but rather a different method of delivery of the same medical care (with the same standard of care) that would have, in the absence of modern technology, been provided in-person.
Which state is next and what approach will they take? Stay tuned!
More White Collar blogs can be found here.
Partner Pamela Coyle Brecht of Pietragallo Gordon Alfano Bosick & Raspanti, LLP has been appointed as a Hearing Committee Member serving the Disciplinary Board of the Supreme Court of Pennsylvania effective July 1, 2020. This appointment is a three-year term. Ms. Brecht also serves as Chair of the firm’s national Qui Tam/False Claims Act (FCA)… Read more »Read More
As COVID-19 continues to spread globally and throughout Pennsylvania, it is becoming likely that most employers will be faced with the question of how to respond when an employee tests positive or has exposure to the coronavirus. If an employee has tested positive for the coronavirus or has been exposed to someone who is presumptive positive for the… Read more »Read More
Pietragallo Partner Frank Pipak will be presenting at the National Business Institute’s (NBI) two-day event, “Human Resource Law from A to Z.” Mr. Pipak has over forty years experience in the area of workers compensation and will be speaking on day two, August 13th, under the section, “Workers’ Compensation Basics.” During this 90-minute segment, Mr…. Read more »Read More
Pietragallo Gordon Alfano Bosick & Raspanti, LLP Partner Pamela Coyle Brecht will present “The False Claims Act Update” at the Pennsylvania Bar Institute’s (PBI) A Day in Health Law program on October 28, 2020 in Philadelphia, Pennsylvania. A Day on Health Law is a one-day, six-hour spin-off of PBI’s annual Health Law Institute. The Health… Read more »Read More