Revision: April 24, 2023, 9:26 a.m.
SB 238-FN - AS AMENDED BY THE SENATE
03/30/2023 0588s
03/30/2023 1254s
03/30/2023 1257s
2023 SESSION
23-0970
05/04
SENATE BILL 238-FN
AN ACT relative to the use of telemedicine to treat mental health conditions.
SPONSORS: Sen. Prentiss, Dist 5; Sen. Birdsell, Dist 19; Sen. Rosenwald, Dist 13; Sen. Altschiller, Dist 24; Sen. D'Allesandro, Dist 20; Sen. Perkins Kwoka, Dist 21; Sen. Whitley, Dist 15; Sen. Watters, Dist 4; Sen. Carson, Dist 14; Sen. Ricciardi, Dist 9; Rep. Merchant, Sull. 6; Rep. Palmer, Sull. 2; Rep. Morse, Graf. 9
COMMITTEE: Health and Human Services
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AMENDED ANALYSIS
This bill permits doctors and APRNs to use telemedicine to prescribe medication to treat mental health conditions. The bill also clarifies the consent required to provide telemedicine services to a minor.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
03/30/2023 0588s
03/30/2023 1254s
03/30/2023 1257s
23-0970
05/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Three
AN ACT relative to the use of telemedicine to treat mental health conditions.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Statement of Purpose. The general court finds and recognizes that parents are responsible for providing and coordinating medical care for their minor children and are presumed to act in the best interest of their children. In order to make informed decisions about a minor child’s healthcare needs, parents must be granted access to their child’s medical records.
2 Physicians and Surgeons; Telemedicine. Amend RSA 329:1-d, III to read as follows:
III. It shall be unlawful for any person to prescribe by means of telemedicine a controlled drug classified in schedule II through IV, except substance use disorder (SUD) treatment and/or mental health conditions. Methadone hydrochloride, as defined in RSA 318-B:10, VII(d)(2), shall not be included in the exemption.
III-a. It shall be unlawful for any person to prescribe by means of telemedicine a controlled drug classified in schedule II through IV without first obtaining oral or written consent from the patient or a minor patient’s parent or guardian, unless state or federal law allows a minor to consent to treatment without the consent of a parent or guardian. For services delivered through telemedicine on an ongoing basis, the practitioner need only obtain consent from the patient or parent or guardian once.
3 Physicians and Surgeons; Telemedicine. Amend RSA 329:1-d, V to read as follows:
V. A physician providing services by means of telemedicine directly to a patient shall:
(a) Use the same standard of care as used in an in-person encounter;
(b) Maintain a medical record that shall be available to the patient, or if the patient is a minor to the patient’s parent or legal guardian, unless: (i) the records are records of treatment that a minor may consent to pursuant to a specific statute under state or federal law without parental consent or the consent of a legal guardian; (ii) a court of competent jurisdiction has determined that the release of the records to a parent or legal guardian is not in the child’s best interest; or (iii) a health care provider has determined by clear and convincing evidence based upon articulable facts that disclosure of the records to a parent or legal guardian of a minor child is likely to result in abuse or neglect. A health care provider who makes this determination shall document in the medical record of the minor child all facts upon which he or she relied in making the determination; and
(c) Subject to the patient's consent, forward the medical record to the patient's primary care or treating provider, if appropriate. In the case of a minor, the consent required by this subparagraph shall be obtained from a parent or legal guardian, unless the records are unavailable to a parent or legal guardian pursuant to subparagraph (b).
4 Nurse Practice Act; Definition of Telemedicine. Amend RSA 326-B:2, XII(c) to read as follows:
(c)(1) It shall be unlawful for any person to prescribe by means of telemedicine a controlled drug classified in schedule II through IV except for use in substance use disorder treatment and/or mental health conditions.
(2) It shall be unlawful for any person to prescribe by means of telemedicine a controlled drug classified in schedule II through IV without first obtaining oral or written consent from the patient or a minor patient’s parent or guardian, unless state or federal law allows a minor to consent to treatment without the consent of a parent or guardian. For services delivered through telemedicine on an ongoing basis, the practitioner need only obtain consent from the patient or parent or guardian once.
5 Nurse Practice Act; Definition of Telemedicine. Amend RSA 326-B:2, XII(e) to read as follows:
(e) An APRN providing services by means of telemedicine directly to a patient shall:
(1) Use the same standard of care as used in an in-person encounter;
(2) Maintain a medical record that shall be available to the patient, or if the patient is a minor to the patient’s parent or legal guardian, unless: (i) the records are records of treatment that a minor may consent to pursuant to a specific statute under state or federal law without parental consent or the consent of a legal guardian; (ii) a court of competent jurisdiction has determined that the release of the records to a parent or legal guardian is not in the child’s best interest; or (iii) a health care provider has determined by clear and convincing evidence based upon articulable facts that disclosure of the records to a parent or legal guardian of a minor child is likely to result in abuse or neglect. A health care provider who makes this determination shall document in the medical record of the minor child all facts upon which he or she relied in making the determination.
(3) Subject to the patient's consent, forward the medical record to the patient's primary care or treating provider, if appropriate. In the case of a minor, the consent required by this subparagraph shall be obtained from a parent or legal guardian, unless the records are unavailable to a parent or legal guardian pursuant to subparagraph (2).
6 New Subparagraph; Office of Professional Licensure and Certification; Telemedicine. Amend RSA 310-A:1-g, V by inserting after subparagraph (d) the following new subparagraph:
(e) Obtain oral or written consent from the patient or, if the patient is a minor, from the patient’s parent or guardian unless state or federal law allows a minor to consent to treatment without the consent of a parent or guardian, for the provision of services through telemedicine. For services delivered through telemedicine on an ongoing basis, the practitioner need obtain consent from the patient or parent or guardian only once.
7 Effective Date. This act shall take effect upon its passage.
23-0970
Amended 4/21/23
SB 238-FN- FISCAL NOTE
AS AMENDED BY THE SENATE (AMENDMENTS #2023-0588s, #2023-1254s, and #2023-1257s)
AN ACT relative to the use of telemedicine to treat mental health conditions.
FISCAL IMPACT: [ X ] State [ X ] County [ ] Local [ ] None
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STATE: | FY 2023 | FY 2024 | FY 2025 | FY 2026 |
Appropriation | $0 | $0 | $0 | $0 |
Revenue | $0 | $0 | $0 | $0 |
Expenditures | $0 | Indeterminable | Indeterminable | Indeterminable |
Funding Source: | [ X ] General [ ] Education [ ] Highway [ ] Other | |||
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COUNTY: |
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Revenue | $0 | $0 | $0 | $0 |
Expenditures | $0 | Indeterminable | Indeterminable | Indeterminable |
METHODOLOGY:
This bill adds mental health conditions as a reason for which a medical professional may allowably prescribe a schedule II through IV controlled drug via telemedicine. In addition, the bill makes it a criminal offense to prescribe controlled drugs via telemedicine without first obtaining consent from the patient or the minor patient's parent or guardian. Theoretically, these changes may result in more or fewer criminal prosecutions, resulting in more or fewer misdemeanor penalties. Although there is no way to project the aggregate impact of the proposed changes, the individual costs associated with such penalties can be seen below.
Judicial Branch | FY 2023 | FY 2024 through 12/31/23 | FY 2024 (Starting 1/1/24 with repeal of Felonies First) | |||
Violation and Misdemeanor Level Offense | $119 | $122 | $122 | |||
Appeals | Varies | Varies | Varies | |||
Judicial Council | FY 2023 | FY 2024 | ||||
Public Defender Program | Has contract with State to provide services. | Has contract with State to provide services. | ||||
Contract Attorney – Misdemeanor | $300/Case $70 administrative fee $100 incarceration fee (If applicable) | $300/Case $70 administrative fee $100 incarceration fee (If applicable) | ||||
Assigned Counsel- Misdemeanor. Travel time to court does not count toward the cap. | $90/Hour up to $2,000 | $90/Hour up to $2,000 | ||||
Assigned Counsel - Supreme Court Appeal | $125/Hour up to $10,000 | $125/Hour up to $10,000 | ||||
It should be noted that a person needs to be found indigent and have the potential of being incarcerated to be eligible for indigent defense services. Historically, approximately 85% of the indigent defense caseload has been handled by the public defender program, with the remaining cases going to contract attorneys (14%) or assigned counsel (1%). Beginning in March of 2021, the public defender program has had to close intake of new cases due to excessive caseloads. Due to these closures, the contract and assigned counsel program have had to absorb significantly more cases. The system is experiencing significant delays in appointing counsel and the costs of representation have increased due to travel time and multiple appointments. | ||||||
NH Association of Counties | FY 2023 | FY 2024 | ||||
County Prosecution Costs | Indeterminable | Indeterminable | ||||
Estimated Average Daily Cost of Incarcerating an Individual | $105 to $125 | $105 to $125 | ||||
AGENCIES CONTACTED:
Judicial Branch, Judicial Council, New Hampshire Association of Counties, and Department of Health and Human Services