Okla. Admin. Code § 505:10-5-19

Current through Vol. 42, No. 4, November 1, 2024

Section 505:10-5-19 - Telemedicine in Optometry

(a)Introduction.

(1)Definition of optometry. The practice of optometry is defined to be the science and art of examining the human eye and measurement of the powers of vision and measurement of the powers of vision by the employment of any means. This includes asynchronous and synchronous technologies including the use of videoconferencing, internet-based services, store-and-forward imaging, streaming media, and terrestrial and wireless communications. The scope of delivery of care as defined in subsections A and B of 59 OS § 581 to an individual who is physically located in this state when the care is delivered shall constitute the practice of optometry. 59 O.S. § 581(c).

(2)The comprehensive visual examination. The prescribing for spectacles or contacts lenses by an optometrist requires a comprehensive visual examination conducted by a physician holding a license to practice optometry in this state. Board Rule 505:10-5-9 establishes the tests and measurements that require findings on the comprehensive examination of a patient when an optometrist intends to sign a prescription for ophthalmic lenses or contact lenses. Some of these required findings must be based on an examination made in person by an optometrist physically present with the patient. Therefore, a comprehensive visual examination shall be inperson by an eye doctor with a face-to-face encounter. In the absence of an existing doctor patient relationship, a prescription for glasses or contact lenses can only be derived through the completion of a comprehensive eye examination. While technology has advanced and continues to advance, in-person care, provided by a doctor of optometry, is the criterion standard for the delivery of a comprehensive eye exam. Direct-to-patient eye and vision-related applications, based on current technologies and uses, cannot replace or replicate a comprehensive eye exam provided by a doctor of optometry who is physically present with the patient. Direct-to-patient eye and vision-related applications may provide data related to elements of a comprehensive eye exam, but do not constitute patient care and fragmentation of a comprehensive eye exam into components delivered independently is deleterious and deceptive to patients. Telemedicine encounters in this state shall not be used to establish a valid physician-patient relationship for prescribing contact lenses and or spectacles because it is not on par with the same service delivered in person. The relationship for prescribing shall include a medically appropriate and timely scheduled face to face encounter between the patient and a physician. The prescribing physician must provide the patient with the treating physicians' identity and professional credentials. Screenings cannot be used to diagnosis or treat conditions. Screenings cannot be used to replace in person comprehensive eye examination. Refractive tests, including online vision tests and other mobile vision related applications, cannot be, based on current technologies and uses, used to provide a refractive diagnosis and/or an eyeglass or contact lens prescription.

(3)Confidentiality and the standard of care. Telemedicine encounters shall comply with the Health Insurance Portability and Accountability Act 1996 and OAC 435:10-7-13 and ensure that all patient communication and records are secure and confidential. Doctors may not waive their obligation or require patients to waive their right to receive the standard of care. Payors may not require either doctor to perform less than the standard of care or patient to waive right to receive the standard of care. The doctor must establish and maintain fundamental elements of the doctor-patient relationship. Board approval of telemedicine: In the event a specific telemedicine program is outside the parameters of these rules, the Board reserves the right upon application of an Oklahoma licensed optometrist, to approve or reject such program or any part or parts of it, pending a formal rulemaking proceeding pursuant to the Administrative Procedure Act.

(b)Telemedicine in Optometry Encounters. Physicians treating patients in Oklahoma through telemedicine in optometry must be fully licensed to practice optometry in Oklahoma and must proceed as follows. Physicians cannot establish a doctor-patient relationship via telehealth alone. During telemedicine encounters, the distant site physician performs an exam of a patient at a separate, remote originating site location which shall be registered with the Board of Examiners in optometry by the distant site physician as a primary or branch practice location pursuant to Rule OAC 505:10-5-7. If the distant site physician deems it to be medically necessary, or if Oklahoma law requires manual procedures at the near site in order to meet legal definitions of procedures which meet the standard of care, a licensed optometrist in this state trained in the use of the equipment shall be utilized at the originating site to "present" the patient, manage the camera, and perform any physical activities to successfully complete the exam. The on-site optometrist must obtain or review all aspects of the patient's medical history and any available medical records. A medical record must be kept and be accessible at both the distant and originating sites; preferably a shared Electronic Medical Record, that is full and complete and meets the standards as a valid medical record. There should be provisions for appropriate follow up care equivalent to that available to face-to-face patients and be on par with the same service delivered in person. The information available to the distant site physician for the medical problem to be addressed must be equivalent in scope and quality to what would be obtained with an original or follow-up face-to-face encounter and must meet all applicable standards of care for that medical problem including the documentation of a history, a physical exam, the ordering of any diagnostic tests, making a diagnosis and initiating a treatment plan with appropriate discussion and informed consent.

(c)Informed consent and patient evaluation. Informed consent for a telemedicine in optometry encounter will include:

(1) Determining how physician will respond to electronic messages.

(2) Determining how to use alternate communications means in emergencies.

(3) Determining who has access to electronic communications.

(4) Determining how electronic messages delivered to specific physician.

(5) Determining how electronic communications are stored.

(6) Determining when/how physician will discontinue providing telehealth services.

During a telemedicine in optometry encounter the physician must also evaluate the following aspects of the patient.

(7) The physician must verify the patient's identity.

(8) The physician must establish a medical history and permanent patient record.

(9) The physician must have and share contact methods other than electronic only - such as phone, mailing address and physician emergency contact information.

(10) The physician must assess and document that patient is capable of electronic visits.

(11) All physicians will disclose their identity and credentials, including informing the patient that the optometrist is licensed to practice in the jurisdiction in which the patient is located.

(12) The physician must attach a photograph (head shot) attached to the optometrist's license and displayed prominently in the examination room so that the patient can identify and match the doctor on the telemedicine prompter to the doctor's license.

(13) The physician must place the welfare of the patient first; protect patient confidentiality; maintain acceptable standards of practice; and properly supervise and oversee any technicians participating in the telemedicine process, thus maintaining appropriate control over the practice.

(d)One single standard of care. The Board believes that telemedicine is a tool and not a separate field of optometry, nor does telemedicine alter the scope of practice of Oklahoma-licensed optometrists. Accordingly, the Board cautions those subject to its jurisdiction and control that there is no separate or different scope of practice or standard of care applicable to those who practice optometry via telemedicine within this state or to those optometrists located outside Oklahoma who diagnose and treat via telemedicine patients located within this state. A failure to conform to the appropriate standard of care,

whether that care is rendered in person or via telemedicine, may subject the licensee to investigation and potentially discipline by the Board. On-line refractions do NOT meet acceptable standards of care. Physicians cannot prescribe controlled substances via telehealth. Physicians cannot split fees for care. The optometrist who utilizes telemedicine in Oklahoma should be mindful of certain requirements and challenges inherent in practice via remote means, among them the following.

(e)Examination, evaluation, and diagnosis. The optometrist must conduct an appropriate evaluation prior to diagnosing or treating the patient, including prior to rendering a prescription for pharmaceuticals, spectacles, or contact lenses. Physical remoteness of the patient does not change the need for a proper patient identification, appropriate intake procedures, adequate patient history, examination, and, where indicated, testing. An optometrist is not excused from performing an appropriate examination, evaluation, and assessment of the patient's condition by virtue of the patient's physical remoteness from the optometrist. Any technician involved in the telemedicine patient encounter should be trained in the use of all equipment utilized in the telemedicine encounter and competent in the operation of such equipment.

(f)Patient records. The optometrist treating via telemedicine must create and maintain a complete record of the patient's intake, diagnosis, and treatment, no different than for an in-person patient encounter. The optometrist must have access to those records at all times so that the optometrist can address and communicate with the patient about any issue the patient brings to the optometrist's attention. Maintaining these records electronically so that they can be accessed from any of the optometrist's practice locations and after normal business hours meets the standard of care.

(g)Prescribing. Prior to prescribing any medication or ophthalmic device (such as spectacles, contact lenses, or low vision devices) the optometrist must conduct an appropriate assessment of the ocular health and visual status of the patient. It is the position of this Board that the standard of care does not permit an examination consisting solely of objective refractive data or information generated by an automated testing device such as an autorefractor in order to establish a medical diagnosis or to establish refractive error. Likewise, issuing a prescription based solely on a patient's responses to a written or online questionnaire does not meet the standard of care in Oklahoma.

(h)Where the practice of optometry occurs. The Board considers that the practice of optometry occurs both where the patient is located and where the optometrist providing professional services is located. In order for an optometrist to provide professional optometric services to a person located in Oklahoma that optometrist must be licensed by the Oklahoma Board of Examiners in Optometry.

(i)Laws and regulations governing the practice of optometry in Oklahoma. As indicated previously, there is no separate standard of care for telemedicine in the practice of optometry in Oklahoma. Accordingly, the optometrist who seeks to use telemedicine in his or her practice should be familiar with the requirements of the Oklahoma Board of Optometry subsections A and B of 59 O.S. § 581 and all other applicable laws and regulations, whether state or federal. By way of example and not limitation, Board Rule OAC 505:10-5-9 Oklahoma establishes the tests and measurements that require findings on the comprehensive examination of a patient for which an optometrist will sign a prescription for ophthalmic lenses or contact lenses. The optometrist should have an established and appropriate procedure for the provision of eye care to his/her patients outside of normal practice hours, and should inform patients of those procedures

(j)Deal appropriately and respectfully with other licensing bodies that may also have oversight. Oklahoma licensees who wish to treat patients located outside Oklahoma by utilizing telemedicine should know both that this Board has oversight of such practice and that other states' boards of optometry may take the position that such constitutes the practice of optometry in their respective states, and accordingly such boards also may require licensure in their states as a prerequisite. Optometrists intending to practice in such manner should therefore check with the optometry boards in all states in which they intend to treat patients for those states' licensure requirements to determine whether or not such practice is permitted in those jurisdictions and whether separate licensure in those states is required.

(k)Displaying license and current certificate of renewal; branch office licenses: Title 505:10-5-7(2) requires display of a copy of the optometrist's license at each of no more than two offices. The licensee must display his/her license and current certificate of renewal in a conspicuous place in each of the optometrist's offices. As noted above, a head shot photograph of the doctor should be attached to the license so as to be visible to a near site patient consulting with a remote site physician. A licensee who practices in more than one office location must obtain a duplicate license for each such branch office, with such branch office licenses to be displayed in like manner.

(l)Equipment and technical standards. Telemedicine technology must be sufficient to provide the same information to the provider as if the exam has been performed face-to-face. Telemedicine encounters must comply with HIPAA (Health Insurance Portability and Accountability Act of 1996) security measures to ensure that all patient communications and records are secure and remain confidential. Audio and video equipment must permit interactive, real-time communications, or may be a store and forward system allowing the distant site optometrist to review the results of a near site examination at a later time.

(m)Unprofessional Conduct. Unprofessional conduct includes prescribing for treatment without sufficient examination as provided in Board Rule 505:10-5-9, proceeding without the establishment of a valid physician-patient relationship, violations of this telemedicine rule under the authority of 59 O.S. § 585(A). and not prescribing in a safe, medically accepted manner.

(n)Applicability and scope. The purpose of this Section is to implement telemedicine policy that increases access to optometric services, while complying with all applicable state and federal laws and regulations. Telemedicine services are not an expansion of the scope of practice of Optometry, but an option for the delivery of certain services within that scope of practice. However, if there are technological difficulties in performing an objective, thorough medical assessment, or problems in the patient's understanding of telemedicine, hands-on-assessment and/or in-person care must be provided for the patient. Any service delivered using telemedicine technology will be appropriate for telemedicine delivery and be of the same quality and otherwise on par with the same service delivered in person. A telemedicine encounter will maintain the confidentiality and security of protected health information in accordance with applicable state and federal law. For purposes of the scope and practice of optometry, telemedicine is deemed to be "the use of any computerized or automatic refracting device, including applications designed to be used on a computer or video conferencing via an Internet device either in person or in remote locations," within the meaning of 59 O.S. § 581(A).

Okla. Admin. Code § 505:10-5-19

Adopted by Oklahoma Register, Volume 41, Issue 21, July 15, 2024, eff. 7/25/2024