By Brad Adatto, JD, Partner, ByrdAdatto

There's a new rule concerning telemedicine in Delaware that could potentially affect you and your practice. On June 1, 2018, the Delaware Board of Medical Licensure and Discipline ("Board") issued a rule to clear up some important issues in the Delaware telemedicine law surrounding patient exams and prescriptions. Telemedicine promises to leverage telecommunication technology to improve delivery and efficiency of medical care. However, it is not risk free. Without the traditional in-person patient exams, the possibility of abuse and less attentive care is increased. To combat this concern, Delaware enacted a telemedicine law in 2015 that lays out a framework for appropriate telemedicine implementation.

The law requires that before a physician can first diagnose and treat a patient via telemedicine, they must have formed a patient-physician relationship and perform an appropriate exam of that patient. This patient exam can take four possible forms. The first two methods are to either have an in-person exam with the attending physician, or have another Delaware licensed physician present with the patient. While these methods can be effective at overcoming the deficiencies of audio/video meetings, they also remove the "tele" aspect of telemedicine.

The third method is to base the diagnosis on audio and video electronic communication. Here the Board has clarified that the audio/video communication must be live and in real-time. This means that the physician cannot rely solely on saved images and data. Therefore, this particular method, known as "store and forward," must use some sort of real-time video conferencing.

The fourth approved method is for the examination to use telemedicine practice guidelines that have been developed by "major medical specialty societies". Through this method, the Board is directing Delaware physicians to look to guidelines promulgated by societies that are members of the Council of Medical Specialty Societies to tailor their telemedicine exam policies. You can find a list of members here.

Finally, the Board has added a major restriction to prescribing opioids via telemedicine. Physicians practicing through telemedicine can prescribe medications under the same standards they use in their in-person practice. However, the rule prohibits telemedicine-practicing physicians from prescribing opioids unless the prescription is part of an addiction treatment program permitted by the Delaware's Division of Substance Abuse and Mental Health and performed according to the Division's guidelines. This restriction should close off a possible avenue for misuse in the face of the opioid epidemic. The Board's rules follow many other states, such as Texas that passed a law in 2017 with similar rules and regulations.

To see how your state handle telemedicine check the AmSpa medical aesthetic legal summary.

Hopefully the reduced uncertainty that these rules bring will not only prompt more Delaware physicians to employ telemedicine in their practices but allow more Delawareans to benefit from this cutting edge technology as well. For more information on your state's laws and regulations, attend an AmSpa Medical Spa & Aesthetic Boot Camp and be the next med spa success story.

Brad Adatto, JD, is a partner at ByrdAdatto, a business, healthcare, and aesthetic law firm that practices across the country. He has worked with physicians, physician groups, and other medical service providers in developing ambulatory surgical centers, in-office and freestanding ancillary service facilities, and other medical joint ventures. He regularly counsels clients with respect to federal and state health care regulations that impact investments, transactions, and contract terms, including Medicare fraud and abuse, anti-trust, anti-kickback, anti-referral, and private securities laws.