Earlier this year, 91st General Assembly of the Arkansas State Legislature held a legislative session during which various acts were passed that are applicable to medical care and treatment. These acts include the Palliative Care Act, Wrongful Birth Civil Liability Protection Act, Patient Right-To-Know Act, POLST, Peer Review Fairness Act and the Telemedicine Act.
What Healthcare Providers Need to Know About the Acts That Were Passed
Earlier this year, the 91st General Assembly of the Arkansas State Legislature held a legislative session during which various acts were passed that are applicable to medical care and treatment. These acts include the following:
ACT 735 – PALLIATIVE CARE ACT:
The act creates a two-year Palliative Care and Quality of Life Interdisciplinary Task Force to give advice on palliative care initiatives and make recommendations for needed statutory changes. The task force’s preliminary report must be complete by January 17, 2019. The task force will consist of 13 members, to be appointed by the Governor, Senator Pro Tempore, and Speaker of the House on behalf of several pre-determined designees. The act further sets out the duties and report requirements of the task force. Read Act 735
ACT 385 – WRONGFUL BIRTH CIVIL LIABILITY PROTECTION ACT:
The act eliminates the cause of action based on a claim that an act or omission of a person contributed to a child being born. The act applies regardless of whether the child is born healthy or with a birth defect or other medical condition. However, it does not limit or eliminate liability for an act or omission that is a proximate cause of any injury to the child before, during, or after birth. The act defines “civil action for wrongful birth” and a “civil action for wrongful life.” Read Act 385
ACT 754 – PATIENT RIGHT-TO-KNOW ACT:
The act requires notice to be given to patients if a physician who serves the patient relocates his or her practice and applies to entities that provide services from healthcare providers. Specifically, it defines “entity” as any person, organization, or business entity of any type that engages a healthcare provider as an employee, independent contractor, member, or in any other capacity for the practice of medicine as defined in § 17-95-202; insurance companies are specifically excluded from the definition. “Healthcare provider” is defined as people who are licensed by the Arkansas Medical Board, Board of Dental Examiners, Boards of Nursing, Chiropractic, Podiatric Medicine, and Optometry, as well as the person who has ultimate responsibility and legal liability for the care of the patient. “Existing patient” is descried as a patient who is seen for medical diagnosis or treatment, or both, by a healthcare provider within the previous twelve (12) months as evidenced by an entry in the medical record of the patient. The “12-month period” is to be calculated from the later of 1) the date the provider’s relationship with the entity terminates or 2) the date the provider gave the entity notice of a new practice location.
The Act outlines various requests which can be made by the healthcare provider to the entity to provide this notice and provides specific notice requirements. The act has strong penalties if not followed. For instance, if patient abandonment or other medical injury occurs due to a violation by the entity, the violation is an affirmative defense for the physician in a claim brought by the injured patient who is then entitled to bring a claim against the entity.
Additionally, healthcare providers and patents have the right to injunctive relief where there is a violation of this act and a prevailing plaintiff is entitled to: 1) the greater of liquidated damages in the amount of $1,000 per day per violation, or actual damages; and (2) reasonable attorney’s fees. The act specifically states a violation constitutes an unfair and deceptive act or practice as defined under the Deceptive Trade Practices Act. Read Act 754
ACT 504 – PHYSICIAN ORDER FOR LIFE-SUSTAINING TREATMENT (POLST):
This act creates a form order for life-sustaining treatment that is distinct from an advance directive. Under the act, physicians and healthcare facilities are required to generally comply with the orders of the completed form. The act also allows for patient directive for “full treatment,” “selective treatment,” or “comfort treatment.” Specifically, the act does not condone, authorize, or approve mercy killing, euthanasia, or physician-assisted suicide. It does not permit any affirmative or deliberate act or omission to end life other than to permit the natural process of dying. A copy of the form is given the same effect as the original physician order for life-sustaining treatment form. Read Act 504
ACT 975 – AMENDS THE PEER REVIEW FAIRNESS ACT:
Many changes were made to the Arkansas Peer Review Fairness Act related to a professional review of hospitals and medical staff. The most significant changes related to the definition of an “investigation” and when an investigation starts. Those participating in such review should consult a healthcare attorney. Read Act 975
ACT 203 – TELEMEDICINE ACT:
This act amended the current laws concerning telemedicine and created a new subchapter.
NEW DEFINITIONS:
The “originating site” is broadened to mean any physical location or site where a patient is located at the time he or she receives healthcare services via telemedicine.
The definition of “telemedicine” has also been broadened to include the use of electronic information and communication technology to deliver healthcare services, including remote monitoring and “store-and-forward technology”.
Healthcare services provided to patients via telemedicine may include but is not limited to, assessment, diagnosis, consultation, treatment, education, care management, and self-management. In addition, the act addresses the requirement that a professional relationship exist between a patient and provider and the standards for the appropriate use of telemedicine. Essentially, once the requirements for a professional relationship have been met, the provider may provide healthcare services via telemedicine. If you are considering providing healthcare services via telemedicine, consult your healthcare attorney to ensure that you are in full compliance with the Telemedicine Act. Read Act 203
This news alert is created by the attorneys in Healthcare Practice Group at Friday, Eldredge & Clark, LLP. The information provided is not a substitute for legal advice and should be considered for general guidance only. Please contact one of our attorneys for specific legal advice regarding this matter.