Proposed Arkansas telemedicine regulations stall in legislative panel

By John Lyon, Arkansas News Bureau

David Wroten, executive vice president of the Arkansas Medical Society, left, and state Rep. Stephen Magie, D-Conway, appear Monday before the House and Senate committees on public health, welfare and labor. John Lyon/Arkansas News Bureau

LITTLE ROCK — A legislative panel declined Monday to sign off on proposed regulations to allow doctors to treat Arkansas patients remotely using audio and video technology.

During a joint meeting of the House and Senate committees on public health, welfare and labor, a motion to review two proposed telemedicine regulations failed after some members raised concerns about whether the state Medical Board had made a substantive, last-minute change to one of the regulations without sufficient transparency, a charge the board’s attorney denied.

The Medical Board voted last month to approve proposed regulations governing telemedicine, as required under Act 887 of 2015. The Legislature and Gov. Asa Hutchinson enacted the legislation to encourage the use of telemedicine in Arkansas, which is ranked last in the nation in telemedicine practice standards by the American Telemedicine Association.

Act 887 states that “store and forward technology,” defined as the transmission of a patient’s medical information from the office of a health-care professional to a provider at a different site without the patient being present, is not telemedicine and is not restricted by the law.

One of the regulations approved by the Medical Board states in part, “A patient completing a medical history online and forwarding it to a physician is not sufficient to establish the (physician-patient) relationship, nor does it qualify as store-and-forward technology.”

The Administrative Rules and Regulations Subcommittee of the state Legislative Council discussed the proposed regulations last week but referred them to the public health committees after hearing testimony from Bradley Phillips, a lobbyist representing Dallas-based telemedicine company Teladoc.

Phillips said then that the language about store-and-forward technology, which was recommended by the state Medical Society, was approved by the Medical Board at the last minute, after a public-comment period had ended.

Phillips said the change in the language was a substantive change and therefore should be published for a new public-comment period. He also testified that the Medical Board approved the change without first providing copies of the Medical Society’s letter requesting the change to members of the public who were present.

Kevin O’Dwyer, attorney for the Medical Board, testified Monday that the language recommended by the Medical Society was not a substantive change and did not require a new public-comment period.

O’Dwyer said the change was just a clarification removing language stating that an advisory committee on telemedicine “does not believe” that a patient forwarding a medical history qualifies as store-and-forward technology.

“That’s not proper language for a regulation,” O’Dwyer said, telling the panel the governor’s legal office has reviewed the change and found it is not substantive.

O’Dwyer also said the letter from the advisory committee was discussed at the Medical Board’s meeting.

Rep. Stephen Magie, D-Conway, a doctor who served on the advisory committee, and David Wroten executive vice president of the Medical Society, also testified that the process was fully transparent.

Sen. John Cooper, R-Jonesboro, said he believed the change “violates some of that statute” and said there appeared to be a controversy over whether the process was transparent.

Sen. Cecile Bledsoe, R-Rogers, who sponsored the legislation that became Act 887, said, “I think the issue has been confused. It was a clarification and not anything more.”

A motion to review both regulations failed, and a motion to review only the regulation not containing the controversial change also failed.

Sen. Missy Irvin, R-Mountain View, said after the meeting that Teladoc’s objections are “stall tactics” because the company is unhappy with Act 887. The law contains a requirement that a patient be at the site of a health-care professional to receive treatment via telemedicine, which would bar Teladoc from serving patients directly, as it does in all other states.

Drew Navikas, attorney for Teladoc, said the company supports the regulations except for the “last-minute revision.”

“We don’t know how ‘store and forward’ might be used in future legislation,” he said.

The proposed regulations will go back to the Rules and Regulations Subcommittee, which could choose to move them forward despite the public health panel’s action.