Breaking Down the New Telehealth Law

Questions and answers to the new Telehealth Law that was sponsored by Sen. Dan Roberts and carried by Rep. Paul Lee in the House – ACT 2022 – 302.

What is its purpose?

The stated legislative intent of the law is to expand access to healthcare through the use of electronic devices and technology. It provides regulation for physician use of telehealth, and also repeals laws providing for a special license for out-of-state physicians to practice through telehealth in Alabama. The new Act requires a full and active Alabama medical license to provide telehealth services to Alabama patients. It does retain the exception for irregular or infrequent telehealth medical services (less than 10 days in 1 year or less than 10 patients in one year)

Does the law also govern telemedicine, and is there a difference in telehealth and telemedicine?

The law defines both telehealth and telemedicine. Telehealth is more of an umbrella term, encompassing the use of electronic and telecommunication technology to support medical care. Telemedicine is defined as the provision of medical services by a physician to a patient when they are not at the same site, using electronic technology. Because telehealth encompasses telemedicine, the two may be used interchangeably, but for purposes of the Act, telemedicine is specific to an electronic communication or encounter between physician and patient.

Does the new law provide a different duty of care?

The law provides that physicians providing telehealth medical services owe the same duty of care to patients as they would providing care in an in-person visit. A physician must establish a diagnosis, disclose that diagnosis and provide a visit summary after providing care by telehealth medical services if he or she would be required to provide those things after an in-person visit. The location of care provided by telehealth medical services is designated as the site where the patient is within the state.

Must a physician establish a relationship with a patient in-person before providing telehealth medical services?

A physician does not have to establish a physician-patient relationship in person prior to providing telehealth medical services, but a physician cannot solicit patients by or for telehealth medical services. Either the patient must initiate the relationship or the patient must be referred by a physician with whom he or she already has an established relationship. A physician is also required to obtain consent from a patient to use telehealth medical services, including the specific mode of communication to be used, prior to the provision of those services. That consent must be documented in the patient’s record. Also prior to delivering telehealth services, a physician must verify the patient’s identity, the patient’s location by city and state, and his or her own credentials to the patient.

Is there a limit on the number of times a patient can be seen by telehealth?

The law does not limit the number of telehealth visits for patients. However, if a physician or someone in his or her practice group has seen the same patient for the same condition using telehealth more than four times in one year without resolution of the problem, then the physician must see the patient in-person or refer the patient to another physician for an in-person visit within one year. The in-person visit requirement can be satisfied using telehealth services as long as there is at least one licensed physician or licensed nurse with the patient at the patient’s site to provide assistance if needed.

Are there any exceptions to the in-person visit requirement after four telehealth encounters?

The in-person visit requirement after four telehealth encounters does not apply if the physician providing the telehealth services is in active consultation with a physician providing in-person care. It further does not apply to the provision of mental health services as defined under Alabama law. The Board of Medical Examiners has the authority to provide further exemptions by Rule.

Is prescribing through telehealth allowed?

A prescriber may prescribe legend drugs, medical supplies or controlled substances through telehealth, if he or she is authorized by law to prescribe them otherwise, as long as there is an established legitimate medical purpose. For prescribing controlled substances by telehealth, a prescriber must also have seen the patient in-person once in the 12-months prior, have established the legitimate medical purpose in the 12-months prior, and have used “real time” technology for the telehealth encounter with the patient when issuing the prescription. The law contains an exemption to these requirements if the prescriber is prescribing a controlled substance to treat a medical emergency, to be defined by the Board of Medical Examiners.

How does this law affect non-physicians who provide telehealth medical services?

This law does not prohibit non-physician health professionals from providing telehealth services as long as those services fall within their particular scope of practice.

Does the law require anything about records or documentation?

Any physician providing telehealth medical services must keep accurate records in accordance with the Rules of the Board of Medical Examiners and Medical Licensure Commission. Physicians must also be able to access those records and provide the Board of Medical Examiners and Medical Licensure Commission access to them upon request. The law further requires physicians providing telehealth medical services to take reasonable cautions to protect the privacy of communications with patients in accordance with state and federal laws, including HIPAA.