Telemedicine Growth in Arkansas
Act 887 of 2015, co-sponsored by Senator Cecile Bledsoe and Representative Deborah Ferguson, known as “The Telemedicine Act,” was passed with the intent to embrace efforts to encourage telemedicine. Subsequently, Senator Bledsoe and Representative Ferguson co-sponsored Act 203 of 2017 (“Telemedicine Amendment”), which amended The Telemedicine Act to expand the definition of “telemedicine” by including “remote patient monitoring” and “store-and-forward technology” within its definition. Additionally, the Telemedicine Amendment authorized providers other than physicians to practice telemedicine, and allowed for home-based telemedicine, but limited their ability to expand telemedicine by stipulating that licensing boards for non-physician practitioners could not issue regulations less restrictive than Arkansas Medical Board (AMB) promulgated regulations. The relevant AMB regulations regarding the establishment of a patient-physician relationship, Regulations 2.8 and 38, do not require an initial in-person examination but instead require that telemedicine be at least equal to an in-person examination.
During the 2019 Legislative Session, two (2) bills were filed with the intention of expanding telemedicine in Arkansas. House Bill 1220, co-sponsored by Representatives Dan Sullivan and Justin Gonzales, passed the House Public Health Committee but was ultimately defeated on the House floor. HB 1220 would have expanded telemedicine by allowing a patient to receive care from a provider through video or audio communication, along with a review of the patient’s medical history. An attempt to resuscitate HB 1220 in the Senate, Senate Bill 680, was unsuccessful, as well.
The COVID-19 pandemic has raised awareness of the potential for telemedicine to assist providers as they provide medical care during these challenging times when in-person visits are limited or canceled. Specifically, two (2) developments in Arkansas have expanded the use of or will expand the use of telemedicine, during this crisis.
First, Governor Hutchinson issued Executive Order 20-05 (Telemedicine EO), which suspended provisions of the Telemedicine Act requiring an in-person examination, or real-time audio and visual means to establish a professional relationship. Physicians, with access to a patient’s health records, are able to establish a professional relationship using any technology deemed appropriate by the provider. The Telemedicine EO, at least temporarily, eliminated the main criticism of Arkansas’s telemedicine law and regulations: that requiring both audio and visual communication to establish a doctor-patient relationship made telemedicine more difficult to deliver to the poor or those in rural areas, who may have limited access to the internet. Essentially, the Telemedicine EO accomplished the intent of HB1220.
Next, the Arkansas Department of Human Services (DHS) has submitted 1115 and 1135 Medicaid Waivers to the Centers for Medicare and Medicaid Services (CMS). Arkansas’s Medicaid 1115 Waiver would help facilitate telemedicine by ensuring providers can offer services online, and DHS would provide enhanced payments to help cover the cost of technology upgrades and training for providers, particularly smaller and rural hospitals. Arkansas’s Medicaid 1135 Waiver would accomplish three (3) main objectives: temporarily allow for non-HIPAA compliant telemedicine technologies; allow for expanded payment for telemedicine services; and, allow telemedicine to be used to meet physician evaluation requirements for certain Durable Medical Equipment, Prosthetics, Orthotics, and Supplies.
While it may be accepted wisdom that telemedicine is providing a great service to patients during this difficult time, and perhaps expanded use of telemedicine could become the “new normal,” it is important to remember that the Telemedicine EO and Medicaid Waivers are temporary. There may be abundant evidence that telemedicine provided a substantial benefit to both providers and patients during this crisis. However, it is incumbent that stakeholders, invested in the expansion of Arkansas’s telemedicine paradigm, become prepared now, to effectively present their case to policymakers after the COVID-19 pandemic subsides.
If you are interested in learning more about how to prepare to articulate and present that message in an effective manner, please let us know. We can assist you in developing a plan of action to accomplish that goal.