I am a Doctor and I Play One on TV: Wisconsin's Telemedicine Rules Are Now in Effect!

Sarah E. Coyne, Bailey Walden
Health Law Alert

Telemedicine is a wonderful solution to so many health care problems, but it has always been a legal conundrum. Many states have enacted rules addressing telemedicine and Wisconsin jumped on the bandwagon with rules that went into effect on June 1, 2017. One of the helpful aspects of the new Wisconsin rules is that they actually define telemedicine, which is a huge step in the right direction, although the definition is broad enough that it may possibly include two paper cups connected by twine and carrier pigeons. (That was a hilarious joke.)

Wisconsin, like so many other states, has been silent on telemedicine for years. Last year, the Wisconsin Medical Examining Board proposed rules (in December, 2016). Governor Walker approved the rules on January 24, 2017 and they became effective June 1, promulgated as Wis. Admin. Code Med. Ch. 24 (MEB Proposed Rule).

Some exciting aspects of the newly effective rule are:

  • What the Heck is Telemedicine? The rule defines telemedicine as "[t]he practice of medicine when patient care, treatment, or services are provided through the use of medical information exchanged from one site to another via electronic communications. Telemedicine does not include the provision of health care services only through an audio-only telephone, e-mail messages, text messages, facsimile transmission, mail or parcel service, or any combination thereof."
  • Is This Really My Doctor? A valid physician-patient relationship may be established via telemedicine.
  • Get a License!!! All physicians using telemedicine to diagnose and treat patients located in Wisconsin must be licensed by the Wisconsin MEB.
  • The Rules Still Apply! Physicians are held to the same standards of practice and conduct, including patient confidentiality and recordkeeping, regardless of whether health care services are provided in-person or by telemedicine.
  • Use Good Stuff! Physicians providing health care services by telemedicine are responsible for the quality and safe use of the equipment and technology. The equipment and technology must, at a minimum, provide information that will enable the physician to meet or exceed the standard of minimally competent medical practice.
  • Web Treatment is Real Treatment! When a physician uses a website to communicate with a patient located in Wisconsin, the physician may not provide treatment recommendations, including issuing a prescription, unless the following requirements are met:
    • The physician is licensed to practice medicine in Wisconsin as required under s. MED 24.04.
    • The physician's name and contact information have been made available to the patient.
    • Informed consent is obtained as required under Wis. Stat. § 448.30 and Wis. Admin. Code s. Med 18.
    • A documented patient evaluation has been performed. A patient evaluation must include a medical history and, to the extent required to meet or exceed the standard of minimally competent medical practice, an examination or evaluation—or both—and diagnostic tests.
    • A patient health care record is prepared and maintained as required under Med 21.
    • Providing treatment recommendations, including issuing a prescription, based only on a static electronic questionnaire does not meet the standard of minimally competent medical practice.
    • You don't get out of HIPAA by treating through telemedicine! (So learn how to spell it! Two A's not two P's!)

For more information contact Sarah Coyne at sarah.coyne@quarles.com/(608) 283-2435, Bailey Walden at bailey.steffes@quarles.com/(414) 277-5769 or your Quarles & Brady attorney.

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