During the 2014 Legislative session, the Louisiana Legislature enacted the Louisiana Telehealth Access Act (the “Act”), La. R.S. 40:1300.401 et seq. In the Act, the Louisiana Legislature declared telehealth to be “extremely valuable” because it enhances access to care, promotes cost-effective delivery of care, and could improve health outcomes. The Act, which became effective on August 1, 2014, authorizes each state agency or professional or occupational licensing board or commission that regulates the practice of a healthcare provider to promulgate rules to provide for, promote, and regulate the use of telehealth in the delivery of healthcare services.
“Telehealth” is defined as a “mode of delivering healthcare services that utilizes information and communication technologies to enable the diagnosis, consultation, treatment, education, care management, and self-management of patients at a distance from healthcare providers.” The scope of providers potentially impacted by the Act is broad as the definition of ‘healthcare provider” includes:
a person, partnership, limited liability partnership, limited liability company, corporation, facility, or institution licensed or certified by this state to provide health care or professional services as a physician assistant, hospital, nursing home, dentist, registered nurse, advanced practice registered nurse, licensed practical nurse, certified nurse assistant, offshore health service provider, ambulance service, licensed midwife, pharmacist, speech-language pathologist, audiologist, optometrist, podiatrist, chiropractor, physical therapist, occupational therapist, certified or licensed athletic trainer, psychologist, medical psychologist, social worker, licensed professional counselor, licensed perfusionist, licensed respiratory therapist, licensed radiologic technologist, or licensed clinical laboratory scientist.
In the event a licensing board promulgates telehealth rules, the rules must provide for:
- Confidentiality of healthcare information and the patient’s rights to the patient’s medical information created during telehealth interactions.
- The same standard of care by a healthcare provider as if the healthcare services were provided in person.
- Licensing or registration of out-of-state healthcare providers who seek to furnish healthcare services via telehealth to persons at originating sites in Louisiana. The healthcare provider must possess an unrestricted and unencumbered license in good standing to perform the healthcare service in the state in which the healthcare provider is located. A reasonable fee for such a license or registration can be assessed.
- Exemption from the requirement of obtaining a telehealth license or registration for the consultation of a Louisiana-licensed healthcare professional with an out-of-state peer professional.
This article will review some of the rules related to the practice of telehealth promulgated both before and after the effective date of the Act by various Louisiana healthcare professional licensing boards.
The Act follows 2008 legislation on “telemedicine,” which is the practice of health care delivery, diagnosis, consultation, treatment, and transfer of medical data using interactive telecommunication technology that enables a health care practitioner and a patient at two locations separated by distance to interact via two-way video and audio transmissions simultaneously. Telephone conversations and emails between a health care practitioner and patient, or a true consultation as may be defined by the Louisiana State Board of Medical Examiners (“LSBME”) rules, do not constitute telemedicine. A person must have an unrestricted Louisiana license to practice medicine or a Louisiana telemedicine license in order to practice in Louisiana and must use the same standard of care as if the healthcare services were provided in person. Telemedicine has its limitations including, but not limited to a prohibition on the prescribing of any controlled dangerous substance prior to conducting an appropriate in-person patient history or physical examination of the patient. A physician practicing telemedicine is required to document telemedicine services in the patient’s medical records. All medical records including video, audio, or electronic, generated as a result of providing telemedicine services are considered confidential and are subject to all applicable state and federal privacy laws.
In 2009, the LSBME promulgated rules on telemedicine and the issuance of telemedicine permits. A physician-patient relationship consisting of verification of the patient, evaluation, diagnosis, treatment plan and follow-up care is required in order for a physician to utilize telemedicine. A physician must ensure that he or she has access to those portions of the patient’s medical record pertinent to the visit and that there is trained support staff available to implement physician orders, transmit medical records generated by the visit, and provide or arrange back up, follow up, and emergency care to the patient. A licensed health care professional is required to be in the examination room with the patient at all times that the patient is receiving telemedicine services. An informed consent, in addition to that otherwise required by state or federal law or regulation, must be obtained wherein relationship between the physician and patient and the role of any other health care provider with respect to management of the patient is explained and the patient may decline to receive medical services by telemedicine or withdraw from such care at any time. A physician cannot utilize telemedicine for the treatment of non-cancer related chronic or intractable pain or obesity. Additionally, the prescribing of amphetamines or narcotics is limited to certain specialties and diagnosis. A non-Louisiana licensed physician practicing across state lines by virtue of a Louisiana telemedicine permit is prohibited from opening an office in Louisiana, meeting with patients in Louisiana, or receiving telephone calls in Louisiana from patients. A violation of the LSMBE telemedicine rules could result in civil, injunctive and criminal penalties.
The Louisiana State Board of Nursing (“LSBN”) has not yet promulgated rules on telenursing, but has issued statements to the effect that any nurse practicing in the state of Louisiana, which may include via telecommunications with a resident of Louisiana, must have a Louisiana license. For example, the LSBN considers case management to fall within the definition of the practice of nursing and requires any individual who practices as a registered nurse case manager to possess a Louisiana RN license. Louisiana is not a member of the Nurse Licensure Compact which is a mutual recognition model permitting registered nurses and licensed practical nurses the ability to practice in states that are members of the compact by maintaining a single license in their primary state of residence. Therefore, if the person receiving nursing care resides in Louisiana, the LSBN will require the person providing the nursing services to have a Louisiana license.
The Louisiana State Board of Social Work Examiners (“LSBSWE”) has issued a consumer information statement on “distance therapy”, i.e. therapy or counseling using telephonic or other electronic means. The LSBSWE requires any individual who provides social work services, including psychotherapy or counseling, either in person, over the Internet or by telephone to be licensed by the LSBSWE. A Licensed Clinical Social Worker (“LCSW”), Graduate Social Worker (“GSW”) and a Provisional Graduate Social Worker (“Provisional GSW”) are authorized to practice distance therapy in Louisiana; however a GSW or Provisional GSW must be an employee in an agency setting and practice under the supervision of a LCSW. A Louisiana social worker, who engages in distance therapy with a non-Louisiana client in another state or country, must also be authorized to practice social work where that client is located. If a social worker provides distance therapy by using the internet, he or she must have a web site listing the credential the social worker holds, physical location, contact information, the contact information for the LSBSWE, and the Professional Disclosure Statement and the LSBSWE’s “Consumer Information Regarding Distance Therapy” statement. Distance therapy cannot be conducted through the exchange of typed or printed data, e-mails or instant messages and may not be used for group therapy or counseling. A valid informed consent is required for distance therapy identifying the plan for services, relevant costs, reasonable alternatives, the client’s right to refuse or withdraw consent, and the timeframe covered by the consent.
The Louisiana Board of Pharmacy has not yet promulgated rules on “telepharmacy,” i.e. the provision of pharmacy services to remote destinations, but per the April 1, 2015 published agenda, the LBP’s Regulation Revisions Committee will be considering telepharmacy in response to the Act. The LBP does already have published rules on off-site services including remote dispensing, remote processing services and cognitive services which require a Louisiana pharmacy permit.
In 2012, the Louisiana Licensed Professional Counselors Board of Examiners (“LPC”) issued a Position Statement on internet counseling finding that mental health services delivered over the internet are rendered where the patient is situated. As such, all counselors serving Louisiana residents are required to be licensed in Louisiana and to adhere to all applicable Louisiana laws relative to the practice of mental health counseling. The LPC’s rule on the use of technology-assisted distance counseling services requires the counselor to determine that the client is physically capable of using the application and the application is appropriate for the needs of clients. Additional informed consent must be obtained addressing maintenance and confidentiality of electronically transmitted communications, emergency procedures when the counselor is not available, and insurance coverage. If a counselor maintains a website, the counselor must provide links to the state licensing board to protect consumer rights and address ethical concerns.
The Louisiana State Board of Examiners of Psychologists (“LSBEP”) issued the “Louisiana Telepsychology Guidelines” effective January 1, 2015. Per the Guidelines, telepsychology is the practice of psychology including assessment, diagnosis, intervention, consultation or information by a psychologist using interactive telecommunication technology to enable a psychologist at a different location than the client to interact via two-way video and audio transmissions simultaneously. At the beginning of a telepsychology service, the psychologist must verify the name and credentials of the professional and name of the patient as well as the location where the patient will be receiving services documenting the date, location, duration and type of service. The psychologist must obtain an informed consent at the start of all services to include: confidentiality; agreed upon emergency plan; potential for technical failure; documentation; protocol for contact between sessions; and conditions under which telepsychology services may be terminated and a referral made to in-person care. The psychologist must ensure privacy so the clinical discussion cannot be overheard by others and review with the client the policy and procedure to ensure privacy of communications via physical, technical, and administrative safeguards. The LSBEP recommends that the initial interview/assessment occur in-person prior to utilizing telepsychology.
As the popularity of providing telehealth services grows, so does the potential for greater regulatory control by the state licensing boards. For healthcare professionals residing outside of Louisiana, in order to provide healthcare to residents of Louisiana, a Louisiana license or permit may be necessary. Before providing telehealth services to patients, healthcare professionals would be wise to review their respective licensing authority’s rules to confirm compliance.