Legislature(2013 - 2014)
2014-09-19 House Journal
Full Journal pdf2014-09-19 House Journal Page 2922 HB 281 CSHB 281(L&C) am S was due back from the Governor August 30, 2014 (page 2886). The following letter dated August 18, 2014, was received: "Dear Speaker Chenault: Under the authority of Article II, Section 17, of the Alaska Constitution, I have let the following bill become law without signature: 2014-09-19 House Journal Page 2923 CS FOR HOUSE BILL NO. 281(L&C) am S "An Act relating to prescription of drugs by a physician without a physical examination." Chapter No. 115, SLA 2014 [Effective Date: November 28, 2014] HB 281 prohibits the Alaska State Medical Board from sanctioning physicians in Alaska who prescribe certain drugs via telemedicine without requiring Alaskans to obtain an in-person physical examination. The bill contains limitations or sideboards on the practice of telemedicine. One sideboard, for example, prohibits dispensing a controlled substance via telemedicine unless it is done with an appropriate licensed health care provider present with the patient to assist the physician with examination, diagnosis, and treatment. Supporters of the legislation contend it will provide Alaskans with additional access to health care, lower cost health care (saving the cost of office visits), and more individual choice to make health care decisions while maintaining a high standard of care. The legislative history indicates telemedicine affords these benefits to consumers when the lower-level, more mundane prescriptions are accessed via telemedicine. Only a small number of health care providers weighed in on HB 281; the Alaska State Medical Association remained largely neutral on the legislation, but available to assist legislators and staff with questions. Legislators voted in overwhelming numbers to pass HB 281. On the other hand, the Alaska State Medical Board ("the Board") opposed HB 281 because of the Board's concern over changing the practice of medicine, in limited circumstances, so as not to include an in-person examination. As Alaskans, we appreciate and commend all physicians and other health care providers in the state. The work of these dedicated professionals and the State Medical Board assure high practice standards exist in Alaska. I carefully considered the Board's legitimate concerns. First, the Board expressed concern that the standard of care would be diminished without requiring either a prior physician-patient relationship or the presence of a licensed healthcare provider with the 2014-09-19 House Journal Page 2924 patient at the time of the consultation. However, no testimony was provided that significant standard of care levels have been diminished in Alaska or elsewhere by using telemedicine. Indeed, telemedicine is already practiced successfully throughout the state, and telemedicine in Alaska originated with the Tribal Health Programs, thanks in significant part to Alaska's former United States Senator Ted Stevens. Not only was no objective data presented of diminished health care outcomes for consumers due to telemedicine, but data exists tending to show the opposite - that telemedicine offers a useful and potentially 1 cost-effective service. Currently in Alaska, when a patient uses telemedicine to access health services like prescriptions, a licensed health care provider is at each end of the line, one with the patient, and one on the other end of the telecommunication. To address the Board's concern that under HB 281 no health care provider would be physically present with the patient to prescribe lower level prescriptions (those that are not controlled substances), legislators added a provision requiring follow-up care and an agreement that the individual receiving the care consents to have all records of the consultation sent to his or her primary care provider. Second, the Board expressed concern that out-of-state medical providers would be prescribing medications from another state; yet nothing in HB 281 changes the requirement that a physician must be licensed to practice medicine in this state. Furthermore, the Legislature directed that the physician be located in this state, and that, as noted above, the prescribing physician or another licensed health care provider is available to provide follow up care. Taken together, these provisions assure the legislative goal of cost-effective medical care delivered by trained and qualified Alaska physicians. In addition, although it appears nothing in HB 281 would restrict an Alaska physician who travels out-of-state temporarily to be able to treat his or her patients via telemedicine while on travel status, the Board could, by regulation, address this if it feels the need. 1 See, Lori Uscher-Pines and Ateev Mehrotra, Abstract, Analysis Of Teladoc Use Seems To Indicate Expanded Access To Care For Patients Without Prior Connection To A Provider Health Affairs February 2014, Vol 33, no. 2, pp. 258 - 264 2014-09-19 House Journal Page 2925 Third, one person raised concern that this legislation might run afoul of judicial interpretation related to whether a physician's recommendation to a patient, given over the phone, to seek emergency 2 room care amounted to medical malpractice. Marsingill and other cases establish that "a physician has a duty to provide a patient with enough information to allow a reasonable patient to make an informed and intelligent decision concerning whether to proceed with 3 treatment." The cases did not hold that physicians are prohibited from making a diagnosis or providing a prescription over the phone. If the concern is that somehow HB 281 would alter the court's rulings on the standards that apply for informed consent between a physician and patient, the Department of Law notes that HB 281 does not amend AS 09.55.556 on standards related to a health care provider's duty to obtain the informed consent of a patient. During the legislative process and in our subsequent review, the bill's potential public benefits of health care access, affordability, and personal responsibility were rigorously weighed against concerns raised by the Board. Like the overwhelming number of legislators who voted to pass HB 281, I believe Alaskans' interests more heavily tilt to implementing HB 281. I also have a great deal of respect for the Alaska State Medical Board and its concern for losing some ability to require in-office patient examination. For these reasons, HB 281 will become law without my signature, so legislators may be reminded in the years ahead to revisit this issue, assure telemedicine is working properly for Alaskans, and to continue the dialogue between the Alaska State Medical Board, legislators, and the Executive Branch. Sincerely, /s/ Sean Parnell Governor" 2 Marsingill v. O'Malley, 58 P.3d 495 (Alaska 2002) (Marsingill I)(Case remanded for further proceedings after lower court denied plaintiff's request for jury instructions based on a reasonable patient standard); Marsingill v. O'Malley, 128 P.3d 151 (Alaska 2006) (Marsingill II) (On appeal after remand, the jury verdict in favor of the physician was upheld.) 3 Marsingill II,128 P.3d at 155, citing to Marsingill I, 58 P.3d at 503 (internal citations omitted).