Tenn. Comp. R. & Regs. 1045-02-.18 - TELEHEALTH IN THE PRACTICE OF OPTOMETRY

(1) Definitions

(a) Emergency - A situation or condition where failure to provide immediate treatment poses a threat of loss of sight to a person. For the purposes hereof, routine visual care shall not be an emergency.

(b) In-person patient encounter - A patient encounter conducted by a provider who is at the same physical location as the location of the patient.

(c) Patient encounter - The rendering of a documented optometrist opinion concerning evaluation, diagnosis, and/or treatment of a patient whether the optometrist is physically present in the same room, in a remote location within the state, or across state lines.

(d) Telehealth - The definition of telehealth shall be defined as provided in T.C.A. § 63-1-155(a)(2).

(2) Establishment of an Optometrist-Patient Relationship

(a) Optometrist-patient relationship. Pursuant to T.C.A. § 63-1-155(b), an optometrist patient relationship with respect to telemedicine or telehealth is created by mutual consent and mutual communication, except in an emergency, between the patient and the optometrist. The consent by the patient may be expressed or implied consent; however, the optometrist-patient relationship is not created simply by the receipt of patient health information by an optometrist unless a prior optometrist-patient relationship exists. The duties and obligations created by the relationship do not arise until the optometrist:

1. Affirmatively undertakes to diagnose or treat the patient; or

2. Affirmatively participates in the diagnosis or treatment.

(b) The optometrist-patient relationship established via telehealth, shall at a minimum, meet the requirements of T.C.A. § 63-1-155(b).

(c) An optometrist shall not render telehealth services, ophthalmic prescribing and eye health services, advice and/or care using telehealth technologies without:

1. Fully verifying, to the extent possible, the requesting patient's identity;

2. Disclosing the optometrist's identity and applicable credential(s) to the patient; and

3. Obtaining appropriate consents from requesting patients after disclosures regarding the delivery models and treatment methods or limitations, including any special informed consents regarding the use of telehealth technologies.

(d) An appropriate optometrist-patient relationship has not been established when the identity of the optometrist is unknown to the patient.

(3) The Appropriate Use of Telehealth Technologies in Optometric Practice

(a) Policy Statement - The Tennessee Board of Optometry has developed these rules to educate licensees as to the appropriate use of telehealth technologies in the practice of optometry. The Tennessee Board of Optometry is committed to ensuring patient access to the convenience and benefits afforded by telehealth technologies, while promoting the responsible practice of optometry by licensees. These rules shall not be construed to alter the scope of practice of any optometrist or authorize the delivery of optometric services in a setting, or in a manner, not otherwise authorized by Tennessee law.

(b) Licensure

1. An optometrist is a "healthcare services provider" under Tennessee law and shall be licensed and under the jurisdiction of the Tennessee Board of Optometry when utilizing telehealth technology to provide services to a patient located in the State of Tennessee.

2. Optometrists who treat or prescribe through online services sites are practicing optometry and are under the jurisdiction of the Tennessee Board of Optometry. Optometrists shall possess appropriate licensure through the Tennessee Board of Optometry. The optometrists shall abide by the established requirements for spectacle and contact lens prescription release pursuant to T.C.A. §§ 63-8-101, et seq.

(c) Treatment of the Patient

1. An optometrist who delivers services through the use of telehealth shall be held to the same standard of professional practice as a similar optometrist of the same practice area or specialty that is providing the same healthcare services through in-person encounters, and nothing in this rule is intended to create any new standards of care.

(d) Informed Consent

1. Evidence documenting appropriate patient informed consent for the use of telehealth technologies shall be obtained and maintained. Documentation of informed consent that is signed and dated, including electronic acknowledgement or signature of the patient, establishes a presumption of informed consent. Appropriate informed consent should include the following terms:

(i) Identification of the patient, the optometrist and the optometrist's credentials;

(ii) Types of transmissions permitted using telehealth technologies;

(iii) Necessity of in-person patient encounter. When, for whatever reason, the telemedicine modality in use for a particular patient encounter is unable to provide all pertinent clinical information that an optometrist exercising ordinary skill and care would deem reasonably necessary for the practice of optometry at an acceptable level of safety and quality in the context of that particular encounter, then the distant site optometrist shall make this known to the patient and advise and counsel the patient regarding the need for the patient to obtain an additional in-person patient encounter reasonably able to meet the patient's needs;

(iv) Limitations of telehealth. A provider who uses telehealth technology, before providing services, shall give each patient notice regarding telehealth services, including the risks and benefits of being treated via telehealth, and how to receive follow-up care or assistance in the event of an adverse reaction to the treatment or in the event of an inability to communicate as a result of a technological or equipment failure; and

(v) Details on security measures taken with the use of telehealth technologies, such as encrypting data, password protected screen savers and data files, or utilizing other reliable authentication techniques, as well as potential risks to privacy notwithstanding such measures;

(e) Continuity of Care. Patients should be able to seek, with relative ease, follow-up care or information from the optometrist who conducts an encounter using telemedicine technologies. Optometrists solely providing services using telehealth technologies with no existing optometrist-patient relationship prior to the encounter shall make documentation of the encounter available using telehealth technologies easily available to the patient, and subject to the patient's consent and request, any identified care provider of the patient within a reasonable time frame after the encounter.

(f) Optometric Records. The patient's optometric record should include, if applicable, copies of all patient-related electronic communications, including optometrist-patient communication(s), prescriptions, laboratory and test results, evaluations and consultations, records of past care, and instructions obtained or produced in connection with the utilization of telehealth technologies. Informed consents obtained in connection with an encounter involving telehealth technologies should also be filed in the patient's examination record. The patient record established during the use of telehealth technologies shall be accessible and documented for both the optometrist and the patient, consistent with T.C.A. §§ 63-8-101, et seq.

(g) Privacy and Security of Patient Records and Exchange of Information

1. Optometrists shall meet or exceed applicable federal and state legal requirements of optometric patient encounters/health information privacy, including compliance with the Health Insurance Portability and Accountability Act (HIPAA) and State of Tennessee privacy, confidentiality, security, and optometric record retention rules.

2. Optometrists shall ensure that sufficient privacy and security measures shall be in place and documented to assure confidentiality and integrity of patient-identifiable information.

(h) Prescribing

1. Telehealth technologies, where prescribing medications and ophthalmic materials may be contemplated, shall require an optometrist to implement measures to uphold patient safety in the absence of a traditional in-person patient encounter. Such measures shall guarantee that the identity of the patient and provider is clearly established and that detailed documentation for the clinical patient encounter and resulting prescription is both enforced and independently kept.

2. Prescribing medications, in-person or via telehealth, is at the professional discretion of the optometrist based on licensure. The indication, appropriateness, and safety considerations for each telehealth visit prescription shall be evaluated by the optometrist in accordance with current standards of practice and consequently carry the same professional accountability as prescriptions delivered during an in-person patient encounter. However, where such measures are upheld, and the appropriate clinical consideration is carried out and documented, optometrists may exercise their judgment and prescribe medications as part of telehealth encounters.

3. Pursuant to Tenn. Comp. R. & Regs. 1045-02-.09(3), all therapeutic prescriptions written by a Tennessee optometrist certified to practice therapeutics shall include:

(i) Tennessee license number; and

(ii) "T" designation preceding license number, i.e. OD-T000.

4. For telehealth ophthalmic prescriptions, the same requirements exist as for fixed fee in-person services as outlined in Tenn. Comp. R. & Regs. 1045-02-.08(3).

Notes

Tenn. Comp. R. & Regs. 1045-02-.18

New rule filed December 20, 2021; effective March 20, 2022. Rule was originally numbered 1045-02-.19 but was renumbered 1045-02.18 with the deletion of original rule 1045-02-.17 filed March 23, 2022; effective 6/21/2022.

Authority: T.C.A. §§ 63-8-112(1) and 63-1-155.