ENROLLED
2015 Regular Session
HOUSE CONCURRENT RESOL UTION NO. 4
BY REPRESENTATIVE SIMON
A CONCURRENT RESOL UTION
To express the intent of the legislature regarding the standard of care that physicians are
required to use in the practice of telemedicine pursuant to the provisions of Act No.
442 of the 2014 Regular Session of the Legislature of Louisiana.
WHEREAS, R.S. 24:177(B)(2) provides, in pertinent part, that the legislature may
express the intended meaning of a law in a duly adopted concurrent resolution; and
WHEREAS, recognizing the need to update state law relative to telemedicine in
order to accommodate advancing technology and innovations in the practice of medicine,
the legislature passed House Bill No. 1280 of the 2014 Regular Session, which became Acts
2014, No. 442, referred to hereafter as "Act No. 442"; and
WHEREAS, a key provision of Act No. 442, now codified as R.S. 37:1271(B)(2)(a),
reads as follows: "The physician practicing telemedicine shall use the same standard of care
as if the healthcare services were provided in person"; and
WHEREAS, as embodied in the requirement that an equivalent standard of care be
used in telemedicine as in the provision of in-person medical services, the intent of Act No.
442 is to ensure patient safety and quality of care while lifting unnecessary restrictions on
the delivery of healthcare services through telemedicine; and
WHEREAS, R.S. 37:1262 defines telemedicine as the practice of medicine through
interactive telecommunication technology that enables a physician and a patient at two
locations separated by distance to interact via two-way video and audio transmissions
simultaneously; and
WHEREAS, because telemedicine is simply the practice of "traditional" medicine
through technologically advanced methods, it is important as a matter of health policy to
combat the misconception that telemedicine is somehow separate and apart from the practice
of medicine generally; and
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WHEREAS, pursuant to the enactment of Act No. 442, the Louisiana State Board
of Medical Examiners, referred to hereafter as "the board", published a notice of intent in
the October, 2014 Louisiana Register proposing administrative rules to regulate the practice
of telemedicine; and
WHEREAS, these proposed rules exceed the scope of legislative authority delegated
to the board as they include specific restrictions on the practice of telemedicine that are not
contemplated or authorized in law; and
WHEREAS, notable among the unauthorized restrictions in the proposed rules are
those on prescribing of controlled substances; and
WHEREAS, with respect to such prescribing, R.S. 37:1271(B)(3), as enacted by Act
No. 442, prohibits a physician from prescribing any controlled dangerous substance through
telemedicine prior to conducting an appropriate in-person patient history or physical
examination of the patient, except as authorized in rules promulgated by the board; and
WHEREAS, the intent of the exception in R.S. 37:1271(B)(3) is not to authorize
restrictions on prescribing that are more strict than the conditions in law relative to
conducting an in-person patient history or physical examination, but rather to allow the
board to expand physicians' authority to prescribe controlled substances only if the board
deems such expanded authority to be in the interest of public health, safety, and welfare; and
WHEREAS, because prescribing of controlled substances when a physician, in his
independent medical judgment, sees fit to do so is a legitimate function within the practice
of medicine, rules proposing to establish a standard of care in telemedicine that differs in any
way from the standard specified in law are inconsistent with the intent of the legislature; and
WHEREAS, with respect to a specific standard of medical care which would apply
in a given situation, the Louisiana 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 (R.S. 37:1261 et seq.), but rather are those which
define medical malpractice (R.S. 9:2794 and R.S. 40:1299.39(B) and 1299.41(A)(22)); and
WHEREAS, the provisions of Act No. 442 now codified in R.S. 37:1271(B)(2)(a)
and (3) are unambiguous, respectively, in the requirement that a physician who practices
telemedicine use the same standard of care as if the healthcare services were provided in
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person, and in the authorization for 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; and
WHEREAS, R.S. 24:177(B)(1) provides that the text of a law is the best evidence
of legislative intent.
THEREFORE, BE IT RESOLVED that the Legislature of Louisiana does hereby
express its intent that the provisions of law codified in R.S. 37:1271(B)(2)(a) and (3)
establish the standard of care that physicians are required to use in the practice of
telemedicine, and does hereby declare that any administrative rules proposing to establish
a standard of care that differs in any way from the standard specified in law are inconsistent
with the intent of the legislature.
BE IT FURTHER RESOLVED that a copy of this Resolution be transmitted to the
members and the executive director of the Louisiana State Board of Medical Examiners.
SPEAKER OF THE HOUSE OF REPRESENTATIVES
PRESIDENT OF THE SENATE
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