Requirements for Providing Services and Prescriptions through Telehealth

Same Standards of Practice

• Pursuant to IC 25-1-9.5-7(a), a "practitioner" who: (1) provides "health care services" through "telehealth;" or (2) directs an employee of the "practitioner" to perform a "health care service" listed in IC 25-1-9.5-2.5(a)(2), IC 25-1-9.5-2.5(a)(3), or IC 25-1-9.5-2.5(a)(4); shall be held to the same standards of appropriate practice as those standards for health care services provided at an in-person setting.

Provider-Patient Relationship Requirements

• Pursuant to IC 25-1-9.5-7(b), a "practitioner" who uses "telehealth" shall, if such action would otherwise be required in the provision of the same "health care services" in a manner other than "telehealth," ensure that a proper provider-patient relationship is established. The provider-patient relationship by a "practitioner" who uses "telehealth" must at a minimum include the following:
  1. Obtain the patient's name and contact information and:
     • a verbal statement or other data from the patient identifying the patient's location; and
     • to the extent reasonably possible, the identity of the requesting patient.
  2. Disclose the "practitioner's" name and disclose the "practitioner's" licensure, certification, or registration.
  3. Obtain informed consent from the patient.
  4. Obtain the patient's medical history and other information necessary to establish a diagnosis.
  5. Discuss with the patient the:
     • diagnosis;
     • evidence for the diagnosis; and
     • risks and benefits of various treatment options, including when it is advisable to seek in-person care.
  6. Create and maintain a medical record for the patient. If a prescription is issued for the patient, and subject to the consent of the patient, the "prescriber" shall notify the patient's primary care provider of any prescriptions the "prescriber" has issued for the patient if the primary care provider's contact information is provided by the patient.
     • These specific requirements, provided under IC 25-1-9.5-7(b)(6), do not apply when any of the following are met:
       • The "practitioner" is using an electronic health record system that the patient's primary care provider is authorized to access.
       • The "practitioner" has established an ongoing provider-patient relationship with the patient by providing care to the patient at least two (2) consecutive times through the use of "telehealth" services. If this condition is met, the "practitioner" shall maintain a medical record for the patient and shall notify the patient's primary care provider of any issued prescriptions.
  7. Issue proper instructions for appropriate follow-up care.
  8. Provide a "telehealth" visit summary to the patient, including information that indicates any prescription that is being prescribed.

Maintenance of Medical Records

• Pursuant to IC 25-1-9.5-7(c), the medical records under IC 25-1-9.5-7(b)(6) must be created and maintained by the "practitioner" under the same standards of appropriate practice for medical records for patients in an in-person setting.

Patient's Waiver of Confidentiality

• Pursuant to IC 25-1-9.5-7(d), a patient waives confidentiality of any medical information discussed with the "practitioner" that is:
  1. provided during a "telehealth" visit; and
  2. heard by another individual in the vicinity of the patient during a "health care service" or consultation.

Certain Prohibitions on Requiring Employees to Use Telehealth

• Pursuant to IC 25-1-9.5-7(e), an employer may not require a "practitioner," by an employment contract, an agreement, a policy, or any other means, to provide a "health care service" through "telehealth" if the "practitioner" believes that providing a "health care service" through "telehealth" would:
  1. negatively impact the patient's health; or
  2. result in a lower standard of care than if the "health care service" was provided in an in-person setting.
• Pursuant to IC 25-1-9.5-7(f), any applicable contract, employment agreement, or policy to provide "telehealth" services must explicitly provide that a "practitioner" may refuse at any time to provide "health care services" if in the "practitioner's" sole discretion the "practitioner" believes:
  1. that health quality may be negatively impacted; or
  2. the "practitioner" would be unable to provide the same standards of appropriate practice as those provided in an in-person setting.

Prescriber Requirements for Issuing Prescriptions through Telehealth

• Pursuant to IC 25-1-9.5-8(a), a "prescriber" may issue a prescription to a patient who is receiving services through the use of "telehealth" if the patient has not been examined previously by the "prescriber" in person if the following conditions are met:
  1. The "prescriber" has satisfied the applicable standard of care in the treatment of the patient.
  2. The issuance of the prescription by the "prescriber" is within the "prescriber's" scope of practice and certification.
  3. The prescription:
     • meets the requirements of IC 25-1-9.5-8(b); and
     • is not for an opioid. However, an opioid may be prescribed if the opioid is a partial agonist that is used to treat or manage opioid dependence.
  4. The prescription is not for an abortion inducing drug (as defined in IC 16-18-2-1.6).
  5. If the prescription is for a medical device, including an "ophthalmic device," the "prescriber" must use "telehealth technology" that is sufficient to allow the provider to make an informed diagnosis and treatment plan that includes the medical device being prescribed. However, a prescription for an "ophthalmic device" is also subject to the conditions in IC 25-1-9.5-13.

Prescriber Requirements for Issuing a Prescription for a Controlled Substance through Telehealth

• Pursuant to IC 25-1-9.5-8(b), except as provided in IC 25-1-9.5-8(a), a "prescriber" may issue a prescription for a controlled substance (as defined in IC 35-48-1-9) to a patient who is receiving services through the use of "telehealth," even if the patient has not been examined previously by the "prescriber" in person, if the following conditions are met:
  1. The "prescriber" maintains a valid controlled substance registration under IC 35-48-3.
  2. The "prescriber" meets the conditions set forth in 21 U.S.C. 829 et seq.
  3. A "practitioner" acting in the usual course of the "practitioner's" professional practices issues the prescription for a legitimate medical purpose.
  4. The "telehealth" communication is conducted using an audiovisual, real time, two-way interactive communication system.
  5. The prescriber complies with the requirements of the INSPECT program (IC 25-26-24).
  6. All other applicable federal and state laws are followed.
• Pursuant to IC 25-1-9.5-8(c), a prescription for a controlled substance under IC 25-1-9.5-8 must be prescribed and dispensed in accordance with IC 25-1-9.3 (Electronically Transmitted Prescriptions for Controlled Substances) and IC 25-26-24 (Central Repository for Controlled Substances Data - INSPECT).

Prescriber Requirements for Issuing a Prescription for an Ophthalmic Device

• As used in IC 25-1-9.5-13, "HIPAA" refers to the federal Health Insurance Portability and Accountability Act.
• Pursuant to IC 25-1-9.5-13(b), a "prescriber" may not issue a prescription for an "ophthalmic device" unless the following conditions are met:
  1. If the prescription is for contact lenses or eyeglasses, the patient must be at least eighteen (18) years of age but not more than fifty-five (55) years of age.
  2. The patient must have completed a medical eye history that includes information concerning the following:
     • Chronic health conditions.
     • Current medications.
     • Eye discomfort.
     • Blurry vision.
     • Any prior ocular medical procedures.
  3. The patient must have had a prior prescription from a qualified "eye care professional" that included a comprehensive in person exam that occurred within two (2) years before the initial use of "telehealth" for a "refraction" under IC 25-1-9.5-13(b)(5)(A) (see Condition #5 below).
  4. If the patient desires a contact lens prescription, at the discretion of the "eye care professional," that patient must have had a prior contact lens fitting or evaluation by a qualified "eye care professional" that occurred within two (2) years before the initial use of "telehealth" for a "refraction" under IC 25-1-9.5-13(b)(5)(A) (see Condition #5 below).
  5. The patient:
     • may not use "telehealth" more than two (2) consecutive times within two (2) years from the date of the examination that occurred under IC 25-1-9.5-13(b)(3) (see Condition #3 above) for a "refraction" without a subsequent in-person comprehensive eye exam [citation: IC 25-1-9.5-13(b)(5)(A)]; and
     • must acknowledge that the patient has had a comprehensive eye exam as required under IC 25-1-9.5-13(b)(5)(A) (see above) before receiving an online prescription.
  6. The patient may allow the "prescriber" to access the patient's medical records using an appropriate HIPAA compliant process.
  7. The "prescriber" must ensure that the transfer of all information, including the vision test and prescription, comply with HIPAA requirements.
  8. The "prescriber" must use technology to allow the patient to have continuing twenty-four (24) hour a day online access to the patient's prescription as soon as the prescription is signed by the "prescriber."

Requirements for Practitioners Physically Located Outside of Indiana - Voluntary Subjection to Indiana's Legal Jurisdiction

• Pursuant to IC 25-1-9.5-9(a), a "practitioner" who is physically located outside Indiana is engaged in the provision of "health care services" in Indiana when the "practitioner:"
  1. establishes a provider-patient relationship under IC 25-1-9.5 with; or
  2. determines whether to issue a prescription under IC 25-1-9.5 for;

an individual who is located in Indiana.

• Pursuant to IC 25-1-9.5-9(b), a "practitioner" described in IC 25-1-9.5-9(a) agrees to be subject to:
  1. the jurisdiction of the courts of law of Indiana; and
  2. Indiana substantive and procedural laws;

concerning any claim asserted against the "practitioner," the "practitioner's" employer, or the "practitioner's" contractor arising from the provision of "health care services" under IC 25-1-9.5 to an individual who is located in Indiana at the time the "health care services" were provided. The provision of "health care services" described in IC 25-1-9.5-9(a)(1) and IC 25-1-9.5-9(a)(2) by a practitioner described in IC 25-1-9.5-9(a) constitutes a voluntary waiver by the "practitioner," the "practitioner's" employer, or the "practitioner's" contractor of any respective right to avail themselves of the jurisdiction or laws other than those specified in IC 25-1-9.5-9(b) concerning the claim.

Prohibition on Using Telehealth for Abortion

• Pursuant to IC 25-1-9.5-0.5, "telehealth" may not be used to provide any abortion, including the writing or filling of a prescription for any purpose that is intended to result in an abortion.

Allowance of Agreements to Alternative Locations for Providing Telehealth

• Pursuant to IC 25-1-9.5-1, IC 25-1-9.5 does not prohibit a provider, "prescriber," insurer, "practitioner," or patient from agreeing to an alternative location of the patient, provider, "practitioner," or "prescriber to conduct telehealth." IC 25-1-9.5 does not supersede any other statute concerning a provider or "prescriber" who provides health care to a patient.

Discipline and Penalties

• Pursuant to IC 25-1-9.5-10(a), a "practitioner" who violates IC 25-1-9.5 is subject to disciplinary action under IC 25-1-9.
• Pursuant to IC 25-1-9.5-10(b), a "practitioner's" employer or a "practitioner's" contractor that violates IC 25-1-9.5-10 commits a Class B infraction.

Pharmacies and Filling Prescriptions for Opioids

• Pursuant to IC 25-1-9.5-11, a pharmacy does not violate IC 25-1-9.5 if the pharmacy fills a prescription for an opioid and the pharmacy is unaware that the prescription was written or electronically transmitted by a "prescriber" providing "telehealth" services under IC 25-1-9.5.

Indiana Professional Licensing Agency's Authority to Adopt Policies and Rules

• Pursuant to IC 25-1-9.5-12, the Indiana Professional Licensing Agency may adopt policies and rules under IC 4-22-2 necessary to implement IC 25-1-9.5. Adoption of policies or rules under IC 25-1-9.5-12 may not delay the implementation and provision of "telehealth" services under IC 25-1-9.5.
• At this time, the Indiana Professional Licensing Agency has not adopted any additional polices or rules to further implement the requirement of IC 25-1-9.5.

Veterinarian-Client-Patient Relationships and Telehealth

• Pursuant to IC 25-1-9.5-15, if a veterinarian is required to establish a veterinarian-client-patient relationship to perform a health care service, the veterinarian shall ensure that a proper veterinarian-client-patient relationship is established, as defined in IC 25-38.1-1-14.5, when providing the service using telehealth.
• Veterinarians are licensed in the state of Indiana by the Indiana Board of Veterinary Medicine.

No Requirement to Provide or Use Telehealth

• Pursuant to IC 25-1-9.5-14, nothing in IC 25-1-9.5 requires an individual to provide or use telehealth.