Health Law Monitor
TREATING BY TELEMEDICINE: MORE THAN JUST PICKING UP THE PHONE AND CALLING-IN A PRESCRIPTION
June 4, 2020
By: John M. Huff
Although the West Virginia Board of Medicine (“WVBOM”) suspended some provisions of the West Virginia Medical Practice Act1 to allow for greater use of telemedicine, it has not suspended all provisions of the telemedicine statute.2 In a departure from W. Va. Code § 30-3-13a(c), the WVBOM now states that “if audio only communication satisfies the standard of care for a particular patient presentation, it may be used to establish a provider patient relationship and to provide patient care.”3 This is a further relaxation of the WVBOM’s previous position that the initial encounter between a physician and a patient could take place via an audio only communication – consistent with the standard of care – for the purpose of evaluating and/or treating COVID-19 patients while all other telemedicine encounters had to comport with the statute as written.4
However, although the WVBOM has relaxed these portions of the telemedicine statute, it has not relaxed the portion of the statute that discusses the actual practice of telemedicine.5 Pursuant to W. Va. Code § 30-3-13a(d),6 a physician practicing telemedicine must fulfill eight requirements for each visit.
First, the physician must “[v]erify the identity and location of the patient.”7 This is important, because “[t]he practice of medicine occurs where the patient is located at the time the telemedicine technologies are used.”8 So, the physician needs to be sure they are licensed and practicing medicine in accordance with the telemedicine statute and/or rules in the state in which the patient is located when providing telemedicine services.9
Second, the physician must provide the patient with both their identity and qualifications to ensure that the patient is clear as to the physician’s medical specialty.10
Third, the physician must provide the patient with their physical location and contact information.11 This will allow the patient to know where the physician is located and how to get in touch with the physician to follow-up should any problems arise.12
Fourth, the physician must establish a physician-patient relationship that conforms with the standard of care. At this time, during the COVID pandemic, the physician-patient relationship may be established through audio only communication if it “satisfies the standard of care for a particular patient presentation.”13 However, in a non-COVID situation, the physician patient relationship must be established in accordance with West Virginia’s telemedicine statute.14
Fifth, the physician must determine if telemedicine is the correct medium for treating a particular patient’s complaints.15 Some complaints will lend themselves very well to telemedicine while others may require a more hands-on examination or emergency treatment that is not possible via telemedicine.16 However, regardless of the situation, the physician must use their discretion to determine if a particular patient presentation is appropriate to be treated through the medium of telemedicine.17
Sixth, the physician must obtain the patient’s consent to be treated by telemedicine.18 This most likely will involve the physician explaining the risks and benefits of being treated by telemedicine so that the patient can make an informed choice regarding whether they want to continue with treatment via telemedicine or make their way to a physician’s office or emergency room.19
Seventh, the physician must “[c]onduct all appropriate evaluations and history of the patient consistent with traditional standards of care for the patient presentation.”20 As stated, even though the patient is being treated via telemedicine, the physician must still use the same standard of care that he or she would use if the patient was sitting in front of them in their office.21
Eighth, the physician must “[c]reate and maintain health care records for the patient which justify the course of treatment and which verify compliance with the requirements of this section.22 In creating these medical records for telemedicine encounters, it is important to include a note that verifies that each step of the statutory requirements were met.23
Although many of these steps seem intuitive, it is important to have them noted in the patient’s medical record to ensure that if the physician is later sued or has to defend a complaint from the West Virginia Board of Medicine, it is both noted and verified that the physician was practicing telemedicine in accordance with the statutory requirements.24 The telemedicine records that a physician develops for a patient must also be “accessible and documented for both the physician…and the patient, consistent with the laws and legislative rules governing patient health care records.”25 Further, laws governing confidentiality and patient access to medical records apply equally to a patient’s telemedicine medical records.26 Moreover, “[a] physician…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 [health] care provider of the patient.27
Upon examination of West Virginia’s telemedicine statute, it is clear that physicians need to be vigilant in both following and recording the steps they take when treating a patient via telemedicine.28 To avoid unnecessary documentation issues if the physician is sued or faces a complaint from the West Virginia Board of Medicine, it is important that the physician notes how they met each of the eight steps set forth in W. Va. Code § 30-3-13a(d). In so doing, the physician will help themselves greatly if they are ever called upon to defend their care of a particular patient.
1 W. Va. Code § 30-3-1 et seq.
2 W. Va. Code § 30-3-13a.
4 https://wvbom.wv.gov/article.asp?id=74&action2=showArticle&ty=CTTS (webpage has been deactivated); see also John M. Huff, To Treat or Not to Treat via Telemedicine? That is the Question, https://www.jacksonkelly.com/health-law-monitor-blog/to-treat-or-not-to-treat-via-telemedicine-that-is-the-question (March 25, 2020).
5 See W. Va. Code § 30-3-13a(d).
6 It is important to note that these requirements “do not apply to the practice of pathology or radiology medicine through store and forward technology.” W. Va. Code § 30-3-13a(d)(9).
7 W. Va. Code § 30-3-13a(d)(1).
8 W. Va. Code § 30-3-13a(b)(1).
9 See id.
10 W. Va. Code § 30-3-13a(d)(2).
11 W. Va. Code § 30-3-13a(d)(3).
12 See id.
14 W. Va. Code § 30-3-13a(c).
15 W. Va. Code § 30-3-13a(d)(5).
16 See id.
17 See id.
18 W. Va. Code § 30-3-13a(d)(6).
19 See id.
20 W. Va. Code § 30-3-13a(d)(7).
21 See id.; see also W. Va. Code § 30-3-13a(e).
22 W. Va. Code § 30-3-13a(d)(8).
23 See id.
24 See id.
25 W. Va. Code § 30-3-13a(f).
28 W. Va. Code § 30-3-13a(d).