Late last month, the Washington D.C. Health Department issued a four-page proposed D.C. municipal regulation on the practice of telemedicine. Until now, providers in Washington D.C. have relied on a policy statement on telemedicine that was issued in November of 2014.  

This proposed regulation would establish rules for the practice of telemedicine in new Section 4618 of Chapter 46 (Medicine) of Title 17 (Business, Occupations, and Professionals) of the District of Columbia Municipal Regulations (DCMR), entitled “Telemedicine.”

The practical implications of the proposed rule include that:

  • Eligible physicians from Virginia and Maryland would continue to be exempt from obtaining a D.C. license to practice telemedicine in D.C. but would have to register with the D.C. board of medicine. Under the proposed regulation, physicians outside of D.C. providing telemedicine to diagnose and treat patients located in D.C. must “meet any licensure requirements in both the jurisdiction in which the provider is physically located and where the patient is physically located.” (to be codified DCMR §4618.1). Under the existing telemedicine licensure requirements for the District (D.C. Code §3-1205.02), physicians from bordering states that offer the same licensing reciprocity to D.C. providers (such as Maryland and Virginia), who do not have an office in the District and who register with the D.C. medical board, are exempt from obtaining a D.C. medical license. Notably, this registration process is up to the discretion of D.C.’s medical board.
  • Physicians would decide whether to use audio-only, real-time communication to establish a physician-patient relationship. Under the proposed regulation, “[i]f a physician-patient relationship does not include a prior in-person, face-to-face interaction with a patient, the physician shall use real-time auditory communications or real-time visual and auditory communications to allow a free exchange of protected health information between the patient and the physician performing the patient evaluation.” (to be codified DCMR §4618.8) This language indicates that whether the physician uses audio-only or audio-and-visual real-time communication would be up to the physician’s discretion.
  • Certain written policies and procedures must be maintained by the telemedicine provider to use email for physician-patient communications. Under the proposed regulation, the following email-communication-related policies and procedures must be maintained (to be codified DCMR §4618.11):
    • Privacy, to assure confidentiality and integrity of patient-identifiable information;
    • Responsibilities of all health care personnel, including the physician, who will process messages;
    • Hours of operation and availability;
    • Types of transactions that will be permitted electronically;
    • Required patient information to be included in the communication, such as patient name, identification number and type of transaction;
    • Archival and retrieval of patient records; and
    • Quality oversight mechanisms.

Any comments on the proposed rule must be submitted by March 26, 2016 electronically, or to Phillip Husband, General Counsel, Department of Health, Office of the General Counsel, 899 North Capitol Street, N.E., 5th Floor, Washington, D.C. 20002.