Executive Orders: Telemedicine

Executive Order No. 20-05

Signed on March 13, 2021, Governor Asa Hutchison’s Executive Order No. 20-05 suspended the provisions in the Telemedicine Act requiring an in-person encounter, or a face-to-face examination using real time audio and visual means to establish a professional relationship.  The order specified that physicians licensed in Arkansas who have access to a patient’s personal health record maintained by a physician may establish a professional relationship with a patient using any technology deemed appropriate by the provider, including the telephone.  The order also suspended the Rules and Regulations of the Arkansas Board of Examiners in Counseling to allow technology-assisted counseling or marriage and family therapy using any technology deemed appropriate, including telephone.

Original Bill

On New Year’s Eve 2020, Representative Aaron Pilkington filed HB1063, which mirrored the Governor’s executive order.  Like the order, HB1063 amends the Telemedicine Act’s definition of “professional relationship” to authorize audio-only consultation and adds virtual telephone visits to the list of telemedicine services.  Per the bill, a professional relationship is established when an Arkansas-licensed healthcare professional with access to a patient’s personal health record uses “technology deemed appropriate by the healthcare professional, including without limitation using a telephone to conduct an audio-only consultation” to diagnose, treat, or prescribe a noncontrolled drug to a patient residing in Arkansas.  The bill also requires the Insurance Commissioner to adopt rules to provide coverage of virtual telephone visits between healthcare professionals and covered individuals.

The bill would eventually be signed into law, but it took seven amendments, a change in sponsorship, and the entirety of session to get to the Governor’s desk.

First Journey Through the House

HB1063’s first journey through the House came and went without much commotion.

Two amendments were filed prior to the bill’s committee presentation in House Public Health on February 9.

• House Amendment 1, January 21
  • HB1063 was amended to exclude the following from the definition of “health benefit plan”: disability income plans; credit insurance plans; insurance coverage issued as a supplement to liability insurance; medical payments under automobile or homeowners insurance plans; health benefit plans provided under Arkansas Constitution, Article 5, § 32, the Workers’ Compensation Law, § 11-9-101 et seq., or the Public Employee Workers’ Compensation Act; plans that provide only indemnity for hospital confinement; accident-only plans; specified disease plans; long-term-care-only plans; and stand-alone dental or vision benefit plans.
• House Amendment 2, February 4
  • HB1063 was amended to delete the provision that permitted a physician to use technology deemed appropriate by the healthcare professional, including without limitation using a telephone to conduct an audio-only consultation, to diagnose, treat, and, if clinically appropriate, prescribe a noncontrolled drug to a patient located in Arkansas. As amended, a “professional relationship” would be established when a physician or other healthcare professional with a professional relationship with the patient uses real-time interactive audio technology, including the telephone.
  • The amendment authorizes audio-only consultation if the communication is real-time, interactive, and substantially meets the requirements for a healthcare service that would otherwise be covered by the health benefit plan.
  • The amendment deletes Section 3, which tasked the Arkansas State Medical Board with adopting rules to implement the bill, and Section 6, which defined “virtual telephone visit” and “healthcare services” as it relates to the coverage of telemedicine services.
  • Concerning prohibitions on the coverage for telemedicine services, a health benefit plan shall not impose a requirement or financial incentive of any kind for a covered person to choose any commercial telemedicine service provider or a restricted network of telemedicine-only providers rather than the covered person’s regular doctor or provider of choice.

The amendments were accepted by the committee without discussion.  Rep. Pilkington presented the bill, stating the bill would make the Governor’s expansion of telehealth under the executive order law.  However, he explained, a safeguard was added to the bill to prevent insurance companies from prioritizing telehealth over in-person visits.

The bill’s presentation in House Public Health drew questions on the term “personal medical record.”  Matt Gilmore from the Arkansas Department of Health joined Rep. Pilkington to assist with questions.  Gilmore was unable to provide a definition of the term and said he expected the state board to interpret it as written when promulgating rules.  Representative Deborah Ferguson explained the difference between a medical record obtained by a provider and forms filled out by a patient.  The former, she stated, was vital if no visual component is present during the visit.

The bill passed by voice vote, but the debate on “personal medical record” was far from over.

Before going to the House floor for a vote, HB1063 was amended a third time.

• House Amendment 3, February 9
  • HB1063 was amended to add personal health records maintained by other licensed healthcare professionals or by local educational agencies to the list of records needed to establish a professional relationship. As previously written, a professional relationship was established when a healthcare professional, who is licensed in Arkansas and has access to a patient’s personal health record that is maintained by a physician or other healthcare professional with a professional relationship with the patient, uses real-time interactive audio technology, including the telephone.

On February 22, HB1063 was presented to the House.  It passed easily with a vote of 97 Yeas.

Journey Through the Senate

The bill’s journey through the Senate was a bit more tumultuous as issues identified in House committee continued to plague the bill.

Senate Committee

Prior to committee presentation, Senator Bart Hester filed the first of four Senate amendments.  This amendment proved to be hard to swallow for many who had supported previous versions of the bill.

• Senate Amendment 1, March 8
  • HB1063 was amended to state a healthcare professional licensed in Arkansas uses telemedicine technology sufficient to evaluate and appropriately treat a patient if the healthcare professional verifies the patient’s identity; discloses the healthcare professional’s name, contact information, and license information; obtains patient consent if required; and meets the same standards of care applicable to in-person healthcare settings.
  • The amendment states documentation of the patient-provider engagement via audio-only communication shall be placed in the medical record, and this documentation is subject to the same audit and review process required by payers and governmental agencies for in-person healthcare.
  • The amendment removes the prohibition against financial incentive of any kind for coverage of telemedicine services.
  • The amendment adds an emergency clause.

On March 10, Sen. Hester presented to the Senate Public Health Committee.  Sen. Hester began his presentation with an explanation of a shift in sponsorship.  He stated that Rep. Pilkington, who was previously the lead on the bill, may be amended off due to Senate Amendment 1.  The amendment, explained Sen. Hester, was added after discussion of the term “personal medical record” in House committee.  The amendment ensures audio-only visits would qualify under telehealth.  He also specified the amendment added the necessary emergency clause.  The goal, said Sen. Hester, is not to lose ground on telemedicine once the emergency order ends.

Multiple parties spoke on the bill and, at times, debate was heated.

• Ferguson spoke against the bill, strongly disagreeing with Sen. Hester’s presentation and voicing concern of the legislative process. She labeled the bill as “hijacked.”  The previous version of the bill, she stated, did extend audio when actual medical records were accessible.  Rep. Ferguson explained the process of establishing a patient relationship, emphasizing the use of audio only in certain situations.
• John Burrus with Capital Advisors Group representing Teledoc spoke in favor of the bill. Burrus stated the ultimate goal is to codify the executive order, and the previous versions of the bill did not meet that goal.
• Scott Smith of the Arkansas Medical Society spoke against the bill. Smith stated the Medical Society was in support of the bill until the amendment and expressed concern on the added language.  The Medical Society supports audio telehealth, but only when there is a medical record maintained by a physician.
• Kyle Zebley, the Director of Public Policy for the American Telemedicine Association, spoke in favor of the bill. According to Zebley, the amended offered by Sen. Hester is vital to make telehealth more widely available in Arkansas.

The bill passed by voice vote.

The following day, as expected, the bill was amended to replace Rep. Pilkington as primary sponsor.

• Senate Amendment 2, March 11
  • HB1063 was amended to replace Rep. Pilkington with Rep. Dotson as primary House sponsor. Rep. Pilkington remains a cosponsor.

Senate Vote

On March 18, Sen. Hester presented HB1063 on the Senate floor.  He outlined the history of the bill, concerns regarding the term “medical record,” and emphasized the bill codifies what EO-20-05 has allowed since March 2020.  Multiple senators spoke on the bill.

• Bledsoe spoke against the bill, urging the Senate to wait for another bill that goes back to the original language used. In addition to concerns over the lack of medical records required for audio visits under the bill, she expressed concern over the removal of language prohibiting incentives for telehealth.  This, she said, would incentivize the use of big out-of-state companies instead of local doctors.
• Clark spoke on the bill, indicating the benefits for speedy care for Arkansans.
• Sullivan spoke for the bill, reassuring members the bill requires Arkansas-licensed doctors and calling attention to concerns with the Medical Board’s involvement.

In closing, Sen. Hester emphasized that this bill would help ensure Arkansans have access to the health care they need.

The bill passed by a vote of 19 Yeas and 11 Nays.  The emergency clause failed on the first vote and during a revote.

Back to the House

After passing the Senate, the bill was re-referred House Public Health.

Rep. Dotson presented the bill to the committee on March 30, focusing on the Senate amendments.   After commentary from multiple members, and a passionate speech against the bill by Rep. Ferguson, Rep. Dotson pulled the bill.  Debate, like on the Senate floor, focused on the term “medical record” and the removal of language disallowing insurance companies to incentivize telehealth over in-person visits.

Back to the Senate

After being pulled from committee discussion in the House, the Senate requested the bill to be returned.  On April 1, the bill was returned to the Senate and the vote by which HB1063 had passed was expunged.

Then, the bill was re-referred to Senate Public Health.  But, before going before the committee, two more amendments were filed.

• Senate Amendment 3, April 6
  • HB1063 was amended to prohibit insurers from imposing a copayment, coinsurance, or deductible on telemedicine providers that is not equally imposed on network providers.
  • The amendment expands the definition of a professional relationship to include when an Arkansas-licensed healthcare professional has access to a patient’s personal health record maintained by a healthcare professional and uses any technology deemed appropriate by the healthcare professional, including the telephone, to diagnose, treat, and if clinically appropriate, prescribe a noncontrolled drug to a patient located in Arkansas.
• Senate Amendment 4, April 7
  • HB1063 was amended to clarify that commercial telemedicine providers must have equal copayment, coinsurance, and deductible rates.

Senate Committee

On April 7, the bill passed Senate Public Health as amended.  Sen. Hester indicated the bill went to the House and was recalled for amendments.  Now, with the amendments, he said the bill mirrors the Governor’s emergency order and clarifies what a health record is. The bill passed by voice vote with no audible dissenters.

Senate Vote

On April 13, HB1063 went before the Senate again.  The bill passed by a vote of 25 Years and 10 Nays.  The emergency clause was adopted.

To the House Again

The bill was returned through the House and quickly passed through House Public Health on April 15.

On April 19, Senate Amendments 1-4 were read and concurred in, with votes of over 90 Yeas.

Executive Order Codified

After a long and bumpy road, HB1063 was signed into law as Act 829 on April 21, 2021, preserving the purpose of EO-20-05 for Arkansans.