PRIOR PRINTER'S NO. 1170
PRINTER'S NO. 1326
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
857
Session of
2019
INTRODUCED BY VOGEL, ARGALL, AUMENT, BAKER, BARTOLOTTA, BLAKE,
BREWSTER, COSTA, GORDNER, HAYWOOD, KILLION, LANGERHOLC,
MARTIN, MENSCH, PHILLIPS-HILL, SANTARSIERO, SCHWANK, STEFANO,
STREET, J. WARD, K. WARD, YAW AND YUDICHAK,
SEPTEMBER 19, 2019
SENATOR SCAVELLO, BANKING AND INSURANCE, AS AMENDED,
OCTOBER 28, 2019
AN ACT
Relating to telemedicine; authorizing the regulation of
telemedicine by professional licensing boards; and providing
for insurance coverage of telemedicine.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Telemedicine
Act.
Section 2. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Audio-only medium." A prerecorded audio presentation or
recording.
"Emergency medical condition." A medical condition
manifesting itself by acute symptoms of sufficient severity,
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including severe pain, such that the absence of immediate
medical attention could reasonably be expected to result in
placing the health of the individual in serious jeopardy,
serious impairment to bodily functions or serious dysfunction of
a bodily organ or part.
"Health care provider" or "provider." Any of the following:
(1) A health care practitioner as defined in section 103
of the act of July 19, 1979 (P.L.130, No.48), known as the
Health Care Facilities Act.
(2) A federally qualified health center as defined in
section 1861(aa)(4) of the Social Security Act (49 Stat. 620,
42 U.S.C. § 1395x(aa)(4)).
(3) A rural health clinic as defined in section 1861(aa)
(2) of the Social Security Act (49 Stat. 620, 42 U.S.C. §
1395x(aa)(2)).
(4) A GENERAL, MENTAL, CHRONIC DISEASE OR OTHER TYPE OF
HOSPITAL LICENSED IN THIS COMMONWEALTH.
(4) (5) A pharmacist who holds a valid license under the
act of September 27, 1961 (P.L.1700, No.699), known as the
Pharmacy Act.
(5) (6) An occupational therapist who holds a valid
license under the act of June 15, 1982 (P.L.502, No.140),
known as the Occupational Therapy Practice Act.
(6) (7) A speech-language pathologist who holds a valid
license under the act of December 21, 1984 (P.L.1253,
No.238), known as the Speech-Language Pathologists and
Audiologists Licensure Act.
(7) (8) An audiologist who holds a valid license under
the Speech-Language Pathologists and Audiologists Licensure
Act.
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(8) (9) A dental hygienist who holds a valid license
under the act of May 1, 1933 (P.L.216, No.76), known as The
Dental Law.
(9) (10) A social worker, clinical social worker,
marriage and family therapist or professional counselor who
holds a valid license under the act of July 9, 1987 (P.L.220,
No.39), known as the Social Workers, Marriage and Family
Therapists and Professional Counselors Act.
(10) (11) A registered nurse who holds a valid license
under the act of May 22, 1951 (P.L.317, No.69), known as The
Professional Nursing Law.
(12) A GENETIC COUNSELOR WHO HOLDS A VALID LICENSE UNDER
THE ACT OF DECEMBER 20, 1985 (P.L.457, NO.112), KNOWN AS THE
MEDICAL PRACTICE ACT OF 1985, OR THE ACT OF OCTOBER 5, 1978
(P.L.1109, NO.261), KNOWN AS THE OSTEOPATHIC MEDICAL PRACTICE
ACT.
(11) (13) An out-of-State health care provider.
"Health care services." Services for the diagnosis,
prevention, treatment, cure or relief of a health condition,
injury, disease or illness.
"Health Information Technology for Economic and Clinical
Health Act." The Health Information Technology for Economic and
Clinical Health Act (Public Law 111-5, 123 Stat. 226-279 and
467-496).
"Health insurance policy." As follows:
(1) An individual or group health insurance policy,
contract or plan that provides coverage for services provided
by a health care facility or health care provider that is
offered by a health insurer.
(2) The term includes an individual or group health
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insurance policy, contract or plan that provides dental or
vision coverage through a provider network.
(3) Except as provided under paragraph (2), the term
does not include accident only, fixed indemnity, limited
benefit, credit, dental, vision, specified disease, Medicare
supplement, Civilian Health and Medical Program of the
Uniformed Services (CHAMPUS) supplement, long-term care or
disability income, workers' compensation or automobile
medical payment insurance.
"Health Insurance Portability and Accountability Act of
1996." The Health Insurance Portability and Accountability Act
of 1996 (Public Law 104-191, 110 Stat. 1936).
"Health insurer." An entity that holds a valid license by
the Insurance Department with accident and health authority to
issue a health insurance policy and governed under any of the
following:
(1) The act of May 17, 1921 (P.L.682, No.284), known as
The Insurance Company Law of 1921, including section 630 and
Article XXIV.
(2) The act of December 29, 1972 (P.L.1701, No.364),
known as the Health Maintenance Organization Act.
(3) 40 Pa.C.S. Ch. 61 (relating to hospital plan
corporations).
(4) 40 Pa.C.S. Ch. 63 (relating to professional health
services plan corporations).
"Interactive audio and video." Real-time two-way or
multiple-way communication between a health care provider and a
patient.
"Licensure board." Each licensing board within the Bureau of
Professional and Occupational Affairs of the Department of State
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with jurisdiction over a professional licensee identified as a
health care provider under this act.
"On-call or cross-coverage services." The provision of
telemedicine by a health care provider designated by another
provider with a provider-patient relationship to deliver
services on a temporary basis so long as the designated provider
is in the same group or health system, has access to the
patient's prior medical records, holds a valid license in this
Commonwealth and is in a position to coordinate care.
"Out-of-State health care provider." A health care provider
providing a telemedicine service that holds a valid license,
certificate or registration in another jurisdiction and is:
(1) discharging official duties in the armed forces of
the United States, the United States Public Health Services
or the United States Department of Veterans Affairs;
(2) providing telemedicine services to a patient through
a federally operated facility;
(3) providing telemedicine services in response to an
emergency medical condition, if the care for the patient is
referred to an appropriate health care provider in this
Commonwealth as promptly as possible under the circumstances;
(4) providing provider-to-provider consultation
services; or
(5) providing services which would otherwise be exempt
from the requirement of licensure, certification or
registration in this Commonwealth under the respective
licensure act.
"Participating network provider." Any of the following
providers who are under contract with a health insurer:
(1) A physician who holds a valid license under the act
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of December 20, 1985 (P.L.457, No.112), known as the Medical
Practice Act of 1985, or the act of October 5, 1978
(P.L.1109, No.261), known as the Osteopathic Medical Practice
Act.
(2) A clinical nurse specialist or certified registered
nurse practitioner who holds a valid license under The
Professional Nursing Law.
(3) A physician assistant who holds a valid license
under the Medical Practice Act of 1985.
(4) A dentist who holds a valid license under The Dental
Law.
(5) An optometrist who holds a valid license under the
act of June 6, 1980 (P.L.197, No.57), known as the Optometric
Practice and Licensure Act.
(6) A psychologist who holds a valid license under the
act of March 23, 1972 (P.L.136, No.52), known as the
Professional Psychologists Practice Act.
(7) A social worker, clinical social worker or
professional counselor who holds a valid license under the
Social Workers, Marriage and Family Therapists and
Professional Counselors Act.
(8) An occupational therapist who holds a valid license
under the Occupational Therapy Practice Act.
(9) A physical therapist who holds a valid license under
the act of October 10, 1975 (P.L.383, No.110), known as the
Physical Therapy Practice Act. A HEALTH CARE PROVIDER THAT
HAS A NETWORK PARTICIPATION AGREEMENT WITH AN INSURER.
"Provider-to-provider consultation." The informal act of
seeking advice and recommendations from another health care
provider for diagnostic studies, therapeutic interventions or
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other services that may benefit the patient of the initiating
health care provider.
"Store-and-forward." Technology that stores and transmits or
grants access to a patient's clinical information for review by
a health care provider who is at a different location. THE TERM
DOES NOT INCLUDE THE STORAGE, TRANSMISSION OR USE OF ELECTRONIC
MEDICAL RECORDS WITHOUT THE CONCURRENT TRANSMISSION OF
ADDITIONAL CLINICAL INFORMATION NOT ALREADY PRESENT IN THE
ELECTRONIC MEDICAL RECORDS.
"Telemedicine." The delivery of health care services
provided through telemedicine technologies to a patient by a
health care provider who is at a different location. The term
does not include a provider-to-provider consultation.
"Telemedicine technologies." As follows:
(1) Electronic information and telecommunications
technology, including, but not limited to, interactive audio
and video, remote patient monitoring or store-and-forward,
that meets the requirements of the Health Insurance
Portability and Accountability Act of 1996, the Health
Information Technology for Economic and Clinical Health Act
or other applicable Federal or State law.
(2) The term does not include the use of:
(i) Audio-only medium, voicemail, facsimile, e-mail,
instant messaging, text messaging or online
questionnaire, or any combination thereof.
(ii) A telephone call, except as provided under
section 5(a)(3).
Section 3. Regulation of telemedicine by professional licensure
boards.
(a) Requirements.--
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(1) A health care provider that holds a valid license,
certificate or registration from a Commonwealth professional
licensure board shall be authorized to practice telemedicine
in accordance with this act and the corresponding licensure
board regulations.
(2) A health care provider who engages in telemedicine
in a manner that does not comply with the standards of care
or rules of practice shall be subject to discipline by the
appropriate licensure board, as provided by law.
(b) Regulations.--Each licensure board shall within 24
months of the effective date of this section promulgate FINAL
regulations that are consistent with this act to provide for and
regulate telemedicine within the scope of practice and standard
of care regulated by the board. THE REGULATIONS SHALL NOT
ESTABLISH A SEPARATE STANDARD OF CARE FOR TELEMEDICINE. THE
STANDARD OF CARE APPLICABLE TO AN IN-PERSON ENCOUNTER SHALL
APPLY TO A TELEMEDICINE ENCOUNTER. The regulations shall:
(1) Consider model policies AND CLINICAL GUIDELINES for
the appropriate use of telemedicine technologies.
(2) Include patient privacy and data security standards
that are in compliance with the Health Insurance Portability
and Accountability Act of 1996 and the Health Information
Technology for Economic and Clinical Health Act.
(c) Temporary regulations.--In order to facilitate the
prompt implementation of this act, the licensure boards shall
transmit notice of temporary regulations regarding
implementation of this act to the Legislative Reference Bureau
for publication in the Pennsylvania Bulletin within 120 days of
the effective date of this section. Temporary regulations are
not subject to:
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(1) Sections 201, 202, 203, 204 and 205 of the act of
July 31, 1968 (P.L.769, No.240), referred to as the
Commonwealth Documents Law.
(2) Sections 204(b) and 301(10) of the act of October
15, 1980 (P.L.950, No.164), known as the Commonwealth
Attorneys Act.
(3) The act of June 25, 1982 (P.L.633, No.181), known as
the Regulatory Review Act.
(4) Section 612 of the act of April 9, 1929 (P.L.177,
No.175), known as The Administrative Code of 1929.
(d) Expiration.--Temporary regulations shall expire no later
than 24 months following publication of temporary regulations.
Regulations adopted after this period shall be promulgated as
provided by law.
(e) Construction.--The provisions of this act shall be in
full force and effect even if the licensure boards have not yet
published temporary regulations or implemented the regulations
required under this section.
Section 4. Compliance.
A health care provider providing telemedicine services to an
individual located within this Commonwealth shall comply with
all applicable Federal and State laws and regulations, and shall
hold a valid license, certificate or registration by an
appropriate Commonwealth licensure board. Failure to hold a
valid license, certificate or registration shall subject the
health care provider to discipline by the respective licensure
board for unlicensed practice.
Section 5. Evaluation and treatment.
(a) Requirements.--Except as provided under subsection (c),
a health care provider who provides telemedicine to an
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individual located in this Commonwealth shall comply with the
following:
(1) For a telemedicine encounter in which the provider
does not have an established provider-patient relationship,
the provider shall:
(i) verify the location and identity of the
individual receiving care; and
(ii) disclose the health care provider's identity,
geographic location and medical specialty or applicable
credentials.
(2) Obtain informed consent regarding the use of
telemedicine technologies from the individual or other person
acting in a health care decision-making capacity for the
individual. The individual or other person acting in a health
care decision-making capacity, including the parent or legal
guardian of a child in accordance with the act of February
13, 1970 (P.L.19, No.10), entitled "An act enabling certain
minors to consent to medical, dental and health services,
declaring consent unnecessary under certain circumstances,"
has the right to choose the form of service delivery, which
includes the right to refuse telemedicine services without
jeopardizing the individual's access to other available
services.
(3) Provide an appropriate examination or assessment
using telemedicine technologies. The health care provider may
utilize interactive audio without the requirement of
interactive video if it is used in conjunction with store-
and-forward technology and, after access and review of the
patient's medical records, the provider determines that the
provider is able to meet the same standards of care as if the
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health care services were provided in person. If the health
care provider utilizes interactive audio without interactive
video, the provider shall inform the patient that the patient
has the option to request interactive audio and video.
(4) Establish a diagnosis and treatment plan or execute
a treatment plan.
(5) Create and maintain an electronic medical record or
update an existing electronic medical record for the patient
within 24 hours. An electronic medical record shall be
maintained in accordance with electronic medical records
privacy rules under the Health Insurance Portability and
Accountability Act of 1996.
(6) Provide a visit summary to the individual if
requested.
(7) Have an emergency action plan in place for medical
and behavioral health emergencies and referrals.
(8) THE STANDARD OF CARE APPLICABLE TO AN IN-PERSON
ENCOUNTER SHALL APPLY TO A TELEMEDICINE ENCOUNTER. IF THE USE
OF TELEMEDICINE WOULD BE INCONSISTENT WITH THE STANDARD OF
CARE, THE HEALTH CARE PROVIDER SHALL DIRECT THE PATIENT TO
SEEK IN-PERSON CARE.
(b) Disclosures.--Providers offering online refractive
services shall inform patients that the service is not an ocular
health exam. This subsection shall not be construed to prohibit
online refractive services if the information notice is clearly
and conspicuously communicated to the patient prior to the
online refractive service.
(c) Applicability.--
(1) Subsection (a)(1) shall not apply to on-call or
cross-coverage services.
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(2) Subsection (a)(1) and (2) shall not apply to an
emergency medical condition.
Section 6. Insurance coverage of telemedicine.
(a) Insurance coverage and reimbursement.--
(1) A health insurance policy issued, delivered,
executed or renewed in this Commonwealth after the effective
date of this section shall provide coverage for MEDICALLY
NECESSARY telemedicine delivered by a participating network
provider who provides a covered service via telemedicine
consistent with the insurer's medical policies. A health
insurance policy may not exclude a health care service for
coverage solely because the service is provided through
telemedicine.
(2) A SUBJECT TO PARAGRAPH (1), A health insurer shall
reimburse a health care provider that is a participating
network provider for telemedicine if the health insurer
reimburses the same participating provider for the same
service through an in-person encounter. The standard of care
and rules of practice applicable to an in-person encounter
shall apply to a telemedicine encounter. REIMBURSEMENT SHALL
NOT BE CONDITIONED UPON THE USE OF AN EXCLUSIVE OR
PROPRIETARY TELEMEDICINE TECHNOLOGY OR VENDOR.
(3) Payment for a covered service provided via
telemedicine by any PARTICIPATING network provider shall be
established NEGOTIATED between the health care provider and
health insurer.
(b) Applicability.--This section shall apply as follows:
(1) Subsection (a)(1) and (2) shall not apply if the
telemedicine service is facilitated via a medical device or
other technology that provides clinical data or information,
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excluding existing information in an electronic medical
records system, other than that independently provided
through interactive audio or video or written input from AND
VIDEO WITH, OR STORE-AND-FORWARD IMAGING PROVIDED BY, the
patient.
(2) For a health insurance policy for which either rates
or forms are required to be filed with the Federal Government
or the Insurance Department, this section shall apply to a
policy for which a form or rate is first filed on or after
180 DAYS AFTER the effective date of this section.
(3) For a health insurance policy for which neither
rates nor forms are required to be filed with the Federal
Government or the Insurance Department, this section shall
apply to a policy issued or renewed on or after 180 days
after the effective date of this section.
(c) Construction.--Nothing under this section shall be
construed to:
(1) Prohibit a health insurer from reimbursing other
providers for covered services provided via telemedicine.
(2) Require a health insurer to reimburse an out-of-
network provider for telemedicine.
Section 7. Medicaid program reimbursement.
(a) Medical assistance payment.--Medical assistance payments
shall be made on behalf of eligible individuals for
telemedicine, consistent with Federal law, as specified under
this act if the service would be covered through an in-person
encounter.
(b) Applicability.--Subsection (a) does not apply if:
(1) the telemedicine-enabling device, technology or
service fails to comply with applicable law and regulatory
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guidance regarding the secure transmission and maintenance of
patient information; or
(2) the provision of the service using telemedicine
would be inconsistent with the standard of care.
Section 8. Effective date.
This act shall take effect as follows:
(1) The following provisions shall take effect in 90
days:
(i) Section 6.
(ii) Section 7.
(1) SECTION 6 SHALL TAKE EFFECT UPON PUBLICATION IN THE
PENNSYLVANIA BULLETIN OF THE TEMPORARY REGULATIONS REQUIRED
IN SECTION 3(C).
(2) SECTION 7 SHALL TAKE EFFECT IN 90 DAYS.
(2) (3) The remainder of this act shall take effect
immediately.
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