Telehealth in Idaho: regulations withdrawn | Holland & Hart – Health Law Blog

As part of Governor Little’s initiative to reduce non-essential regulations, Idaho’s licensing boards (including the Idaho Board of Medicine) withdrew their rules implementing the law on Idaho’s telehealth access for health care providers, including physicians, physician assistants, dentists, and psychologists. (See, for example, ex IDAPA 24.33.03.201 and following.). Therefore, physicians and most other health care providers need only comply with the Act, which requires the following:

54-5704. FIELD OF EXERCISE. A supplier¹ offering telehealth services² must at all times act within the scope of the Provider’s license and in compliance with all applicable laws and rules, including, but not limited to, this Chapter and the Community Standard of Care.

54-5705. PROVIDER-PATIENT RELATIONSHIP. (1) If a provider offering telehealth services has not established a provider-patient relationship with a person seeking such services, the provider shall take appropriate steps to establish a provider-patient relationship using audio interaction or two-way audiovisual. ; provided, however, that the applicable Idaho community standard of care is met. Nothing in this section prohibits electronic communications:

(a) Between a provider and a patient with a pre-existing provider-patient relationship;

(b) Between a provider and another provider regarding a patient with whom the other provider has a provider-patient relationship;

(c) Between a provider and a patient when the provider answers the call on behalf of another provider in the same community who has a provider-patient relationship with the patient; Where

(d) In case of emergency.³

…

54-5706. ASSESSMENT AND TREATMENT. Prior to providing treatment, including an order of prescription drugs, a provider must obtain and document a patient’s relevant clinical history and current symptoms to establish the diagnosis and identify underlying conditions and contraindications to treatment. recommended treatment. Treatment recommendations provided through telehealth services must be consistent with the applicable Idaho community standard of care that applies in an in-person setting. Treatment based solely on an online questionnaire is not an acceptable standard of care.

54-5707. ORDERS. (1) A provider with an established provider-patient relationship, including one established pursuant to Idaho Code Section 54-5705, may issue prescriptions for prescription drugs using telehealth services under of the provider’s license and in accordance with applicable laws, rules and regulations, including the Idaho Community Standard of Care; provided, however, that the prescription drug is not a controlled substance unless prescribed pursuant to 21 USC Title

(2) Nothing in this Chapter shall be construed as extending a provider’s prescriptive authority beyond what is authorized by the provider’s licensing board.

54-5708. INFORMED CONSENT. A patient’s informed consent for the use of telehealth services must be obtained in accordance with any applicable law.⁴

54-5709. CONTINUITY OF CARE. A telehealth service provider should be available for follow-up care or to provide information to patients using these services.

54-5710. REFERRAL TO OTHER SERVICES. A provider must know and have access to available medical resources, including emergency resources near the patient’s location, in order to refer patients appropriately when medically indicated.

54-5711. MEDICAL RECORDS. A provider offering telehealth services must generate and maintain medical records for each patient using telehealth services in accordance with all applicable state and federal laws, rules, and regulations, including the Health Insurance Portability and Accountability Act (HIPAA)… and the Health Information Technology for Economic and Clinical Health Act (HITECH)…. These records must be accessible to other providers, if the patient has given permission, and to the patient in accordance with applicable laws, rules and regulations.

54-5712. APPLICATION AND DISCIPLINE. A provider is prohibited from offering telehealth services in its practice if it does not fully comply with applicable laws, rules, and regulations, including this Act and the Idaho Community Standard of Care. State licensing boards are authorized to enforce the provisions of this chapter relating to the practice of persons they license. A provider who fails to comply with applicable laws, rules and regulations may be subject to disciplinary action by its licensing board.

The law is less specific than most previous licensing rules and should make it easier for health care providers to engage in telehealth in Idaho. Providers should verify and continue to monitor their licensing statuses to confirm any telehealth requirements for their specific license types.

In addition to removing the board’s regulations, the Idaho Division of Occupational and Occupational Licensing (“DOPL”) has made it even easier for out-of-state providers to make telehealth in Idaho during the COVID-19 emergency. In its September 2021 guidance, the DOPL confirmed that:

Any healthcare professional may provide telehealth services in or to Idaho, as long as the healthcare professional is licensed or registered and in good standing with another US state or jurisdiction and is acting in good faith.

A healthcare professional providing telehealth services will consider the following provisions before providing patient care:

• • • A healthcare professional providing telehealth services in or to Idaho must be licensed or registered in any state or jurisdiction in the United States, and in good standing with no active or pending disciplinary action;
    • A healthcare professional providing telehealth services in or to Idaho must act in good faith, exercise due diligence, and comply with applicable federal regulations;
    • A healthcare professional providing telehealth services in or to Idaho must have the education, training, and experience necessary for the services provided; and
    • A healthcare professional providing telehealth services in or to Idaho must use sufficient technology to establish a patient-provider relationship for the services provided.

The Division’s enforcement discretion ends with the termination of Idaho’s state of emergency declaration, unless terminated earlier by DOPL announcement.

(DOPL, Idaho Telehealth Access Act COVID-19 Guidance (9/9/21), Available here.)

¹““Provider” means any healthcare provider who is licensed, required to be licensed, or, if located outside of Idaho, expected to be licensed if located in Idaho, pursuant to Title 54 of the Idaho code, to provide health care with his license. (IC § 54-5703(4)).

²“”Telehealth Services” means health care services provided by a provider to an individual through electronic communications, information technology, asynchronous store-and-forward transfer, or synchronous interaction between a provider at a remote site and a patient at a home site.These services include, but are not limited to, clinical care, health education, home health and the facilitation of self-managed care and patient support. caregivers, and the use of synchronous or asynchronous telecommunications technologies by a provider to provide healthcare services to patients, including but not limited to assessment, diagnosis, consultation, treatment and remote monitoring of a patient; transfer of medical data; education of patients and health professionals; public health services; and health administration. The term “telehealth services” does not include audio in isolation without access to and review of patient medical records, electronic messages that are not Health Insurance Portability and Accountability Act (HIPAA) compliant, or facsimile transmissions. (IC § 54-5703(6)).

³“'[E]“emergency” means a situation in which an event occurs which constitutes an imminent threat of a life-threatening condition or serious bodily harm”. (IC § 54-5705(2)).

⁴Idaho’s informed consent requirements are generally set forth in IC § 39-4501 and following.