STATE OF WISCONSIN
Medical Examining Board
IN THE MATTER OF RULEMAKING PROCEEDINGS BEFORE THE
MEDICAL EXAMINING BOARD
PROPOSED ORDER OF THE MEDICAL EXAMINING BOARD
ADOPTING RULES
(CLEARINGHOUSE RULE 15-087)
PROPOSED ORDER
An order of the Medical Examining Board to create ch.
Med 24
, relating to telemedicine.
Analysis prepared by the Department of Safety and Professional Services.
ANALYSIS
Statutes interpreted:
None.
Statutory authority:
Explanation of agency authority:
Section
15.08 (5) (b)
, Stats., provides examining boards, “shall promulgate rules for its own guidance and for the guidance of the trade or profession to which it pertains. . .”
Section
227.11 (2) (a)
, Stats., sets forth the parameters of an agency’s rule-making authority, stating an agency, “may promulgate rules interpreting provisions of any statute enforced or administered by the agency. . .but a rule is not valid if the rule exceeds the bounds of correct interpretation.”
Section
448.40 (1)
, Stats., provides that the Medical Examining Board “may promulgate rules to carry out the purposes of this subchapter, including rules requiring the completion of continuing education, professional development, and maintenance of certification or performance improvement or continuing medical education programs for renewal of a license to practice medicine and surgery.”
Related statute or rule:
None.
Plain language analysis:
The current administrative code is silent with regards to telemedicine practice. The proposed rule will define telemedicine, explain how a valid physician-patient relationship can be established in a telemedicine setting, and identify technology requirements for physicians who use electronic communications, information technology or other means of interaction with patients who are not physically present. The proposed rule will specify out-of-state physicians to hold a valid Wisconsin medical license in order to diagnose and treat patients located in Wisconsin.
Summary of, and comparison with, existing or proposed federal regulation:
2015 HR 691 - Telehealth Modernization Act of 2015 – the proposed bill seeks to establish a federal standard for telehealth and serve as guidance for states, subject to a number of specified conditions.
Comparison with rules in adjacent states:
Illinois:
Illinois statutes require an individual who engages in telemedicine to hold a medical license issued by the state of Illinois. Telemedicine is defined as including but not limited to rendering written or oral opinions concerning diagnosis or treatment of a patient in Illinois by a person located outside the State of Illinois as a result of transmission of individual patient data by telephonic, electronic, or other means of communication from within this State. Telemedicine specifically does not include periodic consultations between a licensee and a person outside the State of Illinois, a second opinion provided to a licensee; and the diagnosis or treatment services provided to a patient in Illinois following care or treatment originally provided to the patient in the state in which the provider is licensed to practice medicine (225 Ill. Comp. Stat. Ann. s. 60/49.5). The telemedicine provisions are scheduled to be repealed on December 31, 2016.
Iowa:
Iowa Administrative Code 653-13.11 establishes the standards of practices of physicians who use telemedicine. The rules define telemedicine, explain how a valid physician-patient relationship can be established in a telemedicine setting, and identify technology requirements for physicians who use electronic communications, information technology or other means of interaction with patients who are not physically present. The rules require out-of-state physicians to have a valid Iowa medical license in order to diagnose and treat patients located in Iowa.
Michigan:
Michigan statutes and administrative code are silent with regards to the provision of telemedicine services. The standards are the same as in-person care.
Minnesota:
Minnesota does not have any unique laws regulating the practice of telemedicine. Standards are the same as in person care (Minn. Stat. s.
147.032
).
Summary of factual data and analytical methodologies:
Other states’ requirements as well as the Federation of State Medical Boards model policy were reviewed when drafting the proposed rule change.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact analysis:
The rule were posted for public comment on the economic impact of the proposed rule, including how this proposed rule may affect businesses, local government units, and individuals, for a period of 14 days. No comments were received.
Fiscal Estimate and Economic Impact Analysis:
The Fiscal Estimate and Economic Impact Analysis document is attached.
Effect on small business:
These rules do not have an economic impact on small businesses, as defined in s.
227.114 (1)
, Stats. The Department’s Regulatory Review Coordinator may be contacted by email at
Jeffrey.Weigand@wisconsin.gov
, or by calling (608) 267-2435.
Agency contact person:
Dale Kleven, Administrative Rules Coordinator, Department of Safety and Professional Services, Division of Policy Development, 1400 East Washington Avenue, Room 151, P.O. Box 8366, Madison, Wisconsin 53708; telephone 608-261-4472; email at
Dale2.Kleven@wisconsin.gov
.
Place where comments are to be submitted and deadline for submission:
Comments may be submitted to Dale Kleven, Administrative Rules Coordinator, Department of Safety and Professional Services, Division of Policy Development, 1400 East Washington Avenue, Room 151, P.O. Box 8366, Madison, Wisconsin 53708, or by email to
Dale2.Kleven@wisconsin.gov
. Comments must be received on or before the public hearing on
November 16
, 2016 to be included in the record of rule-making proceedings.
TEXT OF RULE
Section
1.
Chapter
Med 24
is created to read:
CHAPTER MED 24
TELEMEDICINE
Med 24.01 Authority and scope
.
The rules in this chapter are adopted by the medical examining board pursuant to the authority delegated by ss.
15.08 (5)
,
227.11
, and
448.40
, Stats., and gover
n the standards of
the practice of medicine using telemedicine.
The rules in this chapter may not be construed to prohibit:
(1)
Consultations between physicians or the transmission and review of digital images, pathology specimens, test results, or other medical data by physicians related to the care of Wisconsin patients.
(2)
Patient care in consultation with another physician who has an established physician-patient relationship with the patient.
(3)
Patient care in on-call or cross-coverage situations in which the physician has access to patient records.
(4)
Treating a patient with an emergency medical condition. In this subsection, “emergency medical condition” means a medical condition manifesting itself by acute symptoms of sufficient severity that the absence of immediate medical attention will result in serious jeopardy to patient health, serious impairment to bodily functions, or serious dysfunction of a body organ or part.
(5)
Use of telemedicine by a Wisconsin licensed physician assistant to provide patient care, treatment, or services within the licensee’s scope of practice under s.
Med 8.07
.
Med 24.0
2
De
finition of telemedicine
.
In
this chapter,
“
t
elemedicine” means
the pra
ctice of medicine
where patient care, treatment, or services are provided through the use of medical information exchanged from one site to another via electronic co
mmunications. Telemedicine does
not include the provision of health care
services only through an audio-
only
telephone, email messages, text messages, f
acsimile transmission, mail or
parcel service, or any combination thereof.
Med 24.0
3
Physician-patient relationship.
A physician-patient relationship may be established through telemedicine.
Med 24.0
4
Wisconsin medical license required.
A physician who uses telemedicine in the diagnosis and treatment of a patient located in
Wisconsin
shall hold an active
Wisconsin
medical license
.
Med 24.0
5
Standards
of
practice and
conduct
.
A Wisconsin licensed physician
shall be held to the same standards
of
practice and
conduct
, including patient confidentiality and recordkeeping,
regardless of whether health care services
are provided in person or by telemedicine.
Med 24.0
6
Equipment and technology
.
A Wisconsin licensed physician providing health c
are services by telemedicine is
responsible for the quality
and safe use of
equipmen
t and technology that is integral to patient diagnosis and treatment
.
The
equipment and technology
used by a Wisconsin licensed physician to provide health care services by telemedicine
shall
be able to provide, at a minimum, information
that
will
enable the physician
to
meet or exceed the standard of
m
inimally competent
medical practice
.
Med 24.0
7
Internet diagnosis and treatment
.
(1)
When
a
physician
uses a website to communicate to a patient
located in Wisconsin
, the physician
may not provide treatment recommendations, including issuing a prescription,
unless the following requirements
are
met:
(a
) T
he physician holds an active Wisconsin medical license
as required under s.
Med 24.04
.
(b
)
The physician’s name
and contact information
have
been made available
to the patient
.
(c
) Informed consent
as required
under s.
448.30
, Stats.
, and ch.
Med 18
.
(d
) A documented patient evaluation has been performed. A patient evaluation shall include a medical history and,
to the extent
required to meet or exceed
the standard of minimally compet
ent medical practice, an
examination
or
evaluation
, or both
,
and diagnostic tests.
(
e
) A patient health care record is prepared and maintained as required under ch.
Med 21
.
(2)
Providing treatment recommendations, including issuing a prescription, based soley on a static electronic q
uestionnaire does not meet
the standard of minimally competent medical practice.
Section
2.
Effective date
.
The rules adopted in this order shall take effect on the first day of the month following publication in the Wisconsin administrative register, pursuant to s.
227.22 (2) (intro.)
, Stats.
(END OF TEXT OF RULE)
