District of Columbia Telemedicine Rules Receive First Update

The telemedicine rules governing the District of Columbia recently received a second round of revisions, courtesy of the District of Columbia Department of Health. Issued in July 2017, the new proposed telemedicine rules address many comments submitted by advocates in the telehealth industry in response to the initial proposed rules released in early 2016. The importance of the new proposed rules is underscored by the fact that the District of Columbia Medical Board currently has no enacted laws directly addressing telemedicine, outside of a 2014 policy statement.

The changes made between the initial draft of the proposed rules and the draft recently released stress greater clarity and the elimination of barriers many commenters felt were unnecessary. The new rule has replaced complicated and technical definitions of telemedicine terms to ease confusion and aid in better understanding. For example, the new rules tweaked the definition of what constitutes “real time,” allowing for a better understanding of what may constitute telemedicine for the purposes of sharing protected health information. The new proposed rules also revised the modality required to create a valid physician-patient relationship via telemedicine in the absence of any prior in-person meeting, a change that differs from the initial telemedicine rules of many states but that has become more and more common as telemedicine continues to spread in popularity among healthcare providers. Among other major changes present in the new revision is the requirement that the treating physician be licensed only in D.C., rather than both where the physician and the patient are located, if not within the same jurisdiction.

For those seeking to enter the telemedicine market in D.C. or those representing these parties, there are many things to consider if the new proposed rules are implemented as currently written. The new rules are much more flexible on modality than when originally written, no longer mandating the use of real-time audio-video technology for all telemedicine services, and not requiring an intervening health care provider. The new rules allow for a D.C. licensed physician to rely on a patient evaluation performed by another D.C. licensed physician if providing telemedicine coverage for that physician. The proposed rules allow for the prescribing of medications through telemedicine with no in-person examination so long as within the guidelines laid out in the proposed rule and within the standard of care that must be followed in any in-person physician-patient encounter. Lastly, the proposed rule treats all communications through telemedicine as part of the patient’s medical record, including email and any other electronic messaging systems, and as such affords those records the same D.C. and federal protection as electronic protected health information.

The proposed rule will be subject to comment for several months before they will be revised to address more comments or published as final rules. Some of the changes seen in the first revision of the D.C. telemedicine proposed rules are illustrative of changes in telemedicine across the country, as telemedicine as a service and form of healthcare becomes more of a norm and less of an outlier. Keeping up with such changes in telemedicine is important for many other reasons as well, especially as the movement for Medicare and Medicaid reimbursement for these services continues to grow. The D.C. proposed rules were revised roughly 1.5 years after first published, reflecting the constant state of change the field as a whole is in. For any person or entity involved in telemedicine, it is important to stay abreast of any potential changes to the law in your jurisdiction, and to consult an experienced healthcare attorney with any questions or concerns.

The proposed rules can be found here: DC proposed telemedicine rules