HLS 15RS-550 ENGROSSED
2015 Regular Session
HOUSE CONCURRENT RESOL UTION NO. 4
BY REPRESENTATIVE SIMON
HEALTH SERVICES: Expresses the intent of the legislature regarding the standard of care
prescribed by law for the practice of telemedicine
1 A CONCURRENT RESOL UTION
2To express the intent of the legislature regarding the standard of care that physicians are
3 required to use in the practice of telemedicine pursuant to the provisions of Act No.
4 442 of the 2014 Regular Session of the Legislature of Louisiana.
5 WHEREAS, R.S. 24:177(B)(2) provides, in pertinent part, that the legislature may
6express the intended meaning of a law in a duly adopted concurrent resolution; and
7 WHEREAS, recognizing the need to update state law relative to telemedicine in
8order to accommodate advancing technology and innovations in the practice of medicine,
9the legislature passed House Bill No. 1280 of the 2014 Regular Session, which became Acts
102014, No. 442, referred to hereafter as "Act No. 442"; and
11 WHEREAS, a key provision of Act No. 442, now codified as R.S. 37:1271(B)(2)(a),
12reads as follows: "The physician practicing telemedicine shall use the same standard of care
13as if the healthcare services were provided in person"; and
14 WHEREAS, as embodied in the requirement that an equivalent standard of care be
15used in telemedicine as in the provision of in-person medical services, the intent of Act No.
16442 is to ensure patient safety and quality of care while lifting unnecessary restrictions on
17the delivery of healthcare services through telemedicine; and
18 WHEREAS, R.S. 37:1262 defines telemedicine as the practice of medicine through
19interactive telecommunication technology that enables a physician and a patient at two
20locations separated by distance to interact via two-way video and audio transmissions
21simultaneously; and
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1 WHEREAS, because telemedicine is simply the practice of "traditional" medicine
2through technologically advanced methods, it is important as a matter of health policy to
3combat the misconception that telemedicine is somehow separate and apart from the practice
4of medicine generally; and
5 WHEREAS, pursuant to the enactment of Act No. 442, the Louisiana State Board
6of Medical Examiners, referred to hereafter as "the board", published a notice of intent in
7the October, 2014 Louisiana Register proposing administrative rules to regulate the practice
8of telemedicine; and
9 WHEREAS, these proposed rules exceed the scope of legislative authority delegated
10to the board as they include specific restrictions on the practice of telemedicine that are not
11contemplated or authorized in law; and
12 WHEREAS, notable among the unauthorized restrictions in the proposed rules are
13those on prescribing of controlled substances; and
14 WHEREAS, with respect to such prescribing, R.S. 37:1271(B)(3), as enacted by Act
15No. 442, prohibits a physician from prescribing any controlled dangerous substance through
16telemedicine prior to conducting an appropriate in-person patient history or physical
17examination of the patient, except as authorized in rules promulgated by the board; and
18 WHEREAS, the intent of the exception in R.S. 37:1271(B)(3) is not to authorize
19restrictions on prescribing that are more strict than the conditions in law relative to
20conducting an in-person patient history or physical examination, but rather to allow the
21board to expand physicians' authority to prescribe controlled substances only if the board
22deems such expanded authority to be in the interest of public health, safety, and welfare; and
23 WHEREAS, because prescribing of controlled substances when a physician, in his
24independent medical judgment, sees fit to do so is a legitimate function within the practice
25of medicine, rules proposing to establish a standard of care in telemedicine that differs in any
26way from the standard specified in law are inconsistent with the intent of the legislature; and
27 WHEREAS, with respect to a specific standard of medical care which would apply
28in a given situation, the Louisiana State Board of Medical Examiners lacks the authority to
29specify practices or actions which constitute an appropriate standard of care, as the statutes
30delineating what does and does not constitute an appropriate standard of care are not those
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1providing for the powers of the board (R.S. 37:1261 et seq.), but rather are those which
2define medical malpractice (R.S. 9:2794 and R.S. 40:1299.39(B) and 1299.41(A)(22)); and
3 WHEREAS, the provisions of Act No. 442 now codified in R.S. 37:1271(B)(2)(a)
4and (3) are unambiguous, respectively, in the requirement that a physician who practices
5telemedicine use the same standard of care as if the healthcare services were provided in
6person, and in the authorization for a physician to prescribe a controlled substance through
7telemedicine after he has conducted an appropriate in-person patient history or physical
8examination of the patient; and
9 WHEREAS, R.S. 24:177(B)(1) provides that the text of a law is the best evidence
10of legislative intent.
11 THEREFORE, BE IT RESOLVED that the Legislature of Louisiana does hereby
12express its intent that the provisions of law codified in R.S. 37:1271(B)(2)(a) and (3)
13establish the standard of care that physicians are required to use in the practice of
14telemedicine, and does hereby declare that any administrative rules proposing to establish
15a standard of care that differs in any way from the standard specified in law are inconsistent
16with the intent of the legislature.
17 BE IT FURTHER RESOLVED that a copy of this Resolution be transmitted to the
18members and the executive director of the Louisiana State Board of Medical Examiners.
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
HCR 4 Engrossed 2015 Regular Session Simon
Present law, R.S. 24:117(B)(2), authorizes the legislature to express the intended meaning
of a law in a duly adopted concurrent resolution.
Present law, R.S. 37:1271(B)(2)(a) and (3), requires that a physician who practices
telemedicine use the same standard of care as if the healthcare services were provided in
person, and authorizes a physician to prescribe a controlled substance through telemedicine
after he has conducted an appropriate in-person patient history or physical examination of
the patient.
Proposed resolution expresses the intent of the legislature that present law establishes the
standard of care that physicians are required to use in the practice of telemedicine, and
declares that any administrative rules proposing to establish a standard of care that differs
from the standard specified in law are inconsistent with the intent of the legislature.
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Summary of Amendments Adopted by House
The Committee Amendments Proposed by House Committee on Health and Welfare to
the original resolution:
1. Delete a reference to a provision of present law.
2. Indicate that with respect to a specific standard of medical care which would
apply in a given situation, the La. State Board of Medical Examiners lacks the
authority to specify practices or actions which constitute an appropriate standard
of care, as the statutes delineating what does and does not constitute an
appropriate standard of care are not those providing for the powers of the board,
but rather are those which define medical malpractice.
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