The Arkansas State Medical Board on Thursday voted unanimously to pass Regulation 38 establishing key definitions for telemedicine practice in the State. The new regulation imposes specific Board of Medicine requirements for practicing telemedicine, and is to be read in connection with Regulation No. 2(8) (valid doctor-patient relationships). However, neither regulation addresses the definition of “originating site” under Arkansas Code 17-80-118 or how the Board would apply it to telemedicine consults where the patient is located at his or her home.

The current Arkansas statutory definition of “originating site” reads:

• “The offices of a healthcare professional or a licensed healthcare entity where the patient is located at the time services are provided by a healthcare professional through telemedicine; and

• The home of a patient in connection with treatment for end-stage renal disease.”

Any change to that definition would likely require a legislative solution, as the Board’s regulations can interpret the law, but do not (and likely cannot) contradict the Code. Regulation 38 expects practitioners to use synchronous audio-video technology, and states “A patient completing a medical history online and forwarding it to a physician is not sufficient to establish the relationship, nor does it qualify as sort-and-forward technology.”

As we reported in August, the Medical Board previously approved proposed Regulation 38 and (allowing a doctor to establish a valid relationship with a patient, without the need for an in-person exam, if the doctor “performs a face to face examination using real time audio and visual telemedicine technology that provides information at least equal to such information as would have been obtained by an in-person examination”). The Arkansas Legislature’s Rules and Regulations subcommittee voted to approve Regulation 2.8 but sent Regulation 38 back to the Medical Board for a new public-comment hearing. Regulation 38 will now go back to the Rules and Regulations subcommittee. If lawmakers approve it, the rule will become effective 10 days after it is sent to Arkansas’ secretary of state’s office.