This week, Governor Mike Pence signed into law a measure that will enable the expanded use of telemedicine in Indiana by permitting prescriptions for certain drugs and devices to be issued during remote patient visits.
House Enrolled Act (“HEA”) 1263, authored by Rep. Cindy Kirchhofer (R-Beech Grove), will override the current law that prevents prescribing through telemedicine unless the patient has first been seen and examined in person.
The passage of HEA 1263 represents an important step forward in the removal of barriers to telemedicine expansion in the state and will provide substantial opportunities for Indiana health care providers to create new care delivery models. This new law will take effect July 1, 2016.
Current Barriers to Internet Prescribing
Under current Medical Licensing Board (“MLB”) regulations, physicians are prohibited from prescribing or dispensing drugs to a patient who the physician has not personally physically examined and diagnosed. This is viewed as one of Indiana’s most significant barriers to the expansion of telemedicine in the primary care and urgent care settings, as the rule has been largely interpreted as requiring a patient to be seen by a physician in person before a prescription may be issued.
The MLB rule provides for limited exceptions to the “in-person examination” requirement, such as in institutional settings and for situations involving on-call physicians and cross coverage. There are some providers who have relied on more liberal interpretations of these exceptions as the basis for their telemedicine programs where prescriptions are issued remotely to patients under the current law.
Summary of the New Telemedicine Law
Beginning July 1, 2016, Indiana-licensed providers (specifically, physicians, optometrists, and advanced practice nurses and physician assistants with prescriptive authority) will be permitted to use telemedicine to issue prescriptions for certain devices and non-controlled drugs as long as the provider has established a proper provider-patient relationship and has met the applicable standard of care. Prescriptions for controlled substances, abortifacients and certain ophthalmic devices are not permitted to be issued via telemedicine.
Regardless of whether a prescription will be issued, providers are required to establish a provider-patient relationship, which may be formed during the remote visit, prior to delivering any health care services to the patient using telemedicine. HEA 1263 sets forth minimum standards that a provider must satisfy in order to establish a provider-patient relationship. These include, among other requirements, the necessity to obtain a patient’s informed consent, to provide certain notifications to the patient and to create and maintain a medical record.
Certain out-of-state providers (as well as their employers or other entities that contract with a provider to deliver telemedicine services) may be required to file a certification with the state’s Professional Licensing Agency (“PLA”) in order to deliver telemedicine services to patients located in Indiana. If a provider’s practice is located predominately outside of Indiana and the provider intends to deliver remote services to Indiana patients at times when the provider is physically located out of state, certifications must be filed with PLA that waive the rights of the provider, the provider’s employer and the contracted entity to avail themselves of the jurisdiction or the laws of another state for the purposes of any claims that arise from the telemedicine services provided to Indiana patients.
Practical Takeaways
In all instances where services are delivered to an Indiana patient, a provider must be actively licensed in Indiana and abide by all applicable practice requirements regardless of which state the provider is located while delivering telemedicine services. Telemedicine providers will be held to the same standards of appropriate practice that apply to the in-person setting, and both the MLB and PLA are authorized to adopt rules or policies to establish additional guidelines for the implementation of HEA 1263.
It is also important to note that a provider may deliver remote health care services to a patient, including the issuance of a prescription, using “telemedicine” as it is defined under HEA 1263. This includes the use of: (1) secure videoconferencing; (2) interactive audio using store and forward technology; or (3) remote patient monitoring technology. Health care providers should consult with legal counsel to ensure any technologies used to deliver health care services from a distance are in compliance with the new law.
A copy of the final version of HEA 1263 that passed into law can be found here.
If you have any questions, please contact:
- Hannah K. Brown at (317) 977-1451 or hbrown@wp.hallrender.com; or
- Your regular Hall Render Attorney.
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