(a) Physicians may practice telemedicine and telehealth. Provided that telemedicine shall not be utilized by a physician with respect to any patient in the absence of a physician-patient relationship, except for the instances in subsection (k) of this section.

(b) Physicians who utilize telemedicine shall, if such action would otherwise be required in the provision of the same service not delivered via telemedicine, ensure that a proper physician-patient relationship is established either in-person or through telehealth which includes but is not limited to:

(1) Fully verifying and authenticating the location and, to the extent possible, identifying the requesting patient;

(2) Disclosing and validating the provider’s identity and applicable credential or credentials;

(3) Obtaining appropriate consents from requesting patients after disclosures regarding the delivery models and treatment methods or limitations, including informed consents regarding the use of telemedicine technologies as indicated in paragraph (b)(5) of this section;

(4) Establishing a diagnosis through the use of acceptable medical practices, such as patient history, mental status examination, physical examination (unless not warranted by the patient’s mental condition), and appropriate diagnostic and laboratory testing to establish diagnoses, as well as identify underlying conditions or contra-indications, or both, to treatment recommended or provided;

(5) Discussing with the patient the diagnosis and the evidence for it, the risks and benefits of various treatment options;

(6) Ensuring the availability of the distant site provider or coverage of the patient for appropriate follow-up care; and

(7) Providing a written visit summary to the patient.

(c) Treatment and consultation recommendations made in an online setting, including issuing a prescription via electronic means, will be held to the same standards of appropriate practice as those in traditional (encounter in person) settings.

(d) The physician treating a patient through telemedicine must maintain a complete record of the patient’s care which must follow all applicable state and federal statutes and regulations for recordkeeping, confidentiality, and disclosure to the patient.

(e) Telemedicine shall include, at such time as feasible and when appropriate, utilizing the Delaware Health Information Network (DHIN) in connection with the practice.

(f) Without a prior and proper patient-provider relationship, as provided in subsection (b) of this section, providers are prohibited from issuing prescriptions solely in response to an Internet questionnaire, an Internet consult, or a telephone consult.

(g) Prescriptions made through telemedicine and under a physician-patient relationship may include controlled substances, subject to limitations as set by the Board.

(h) Physicians using telemedicine technologies to provide medical care to patients located in Delaware must, prior to a diagnosis and treatment, either provide:

(1) An appropriate examination in-person;

(2) Have another Delaware-licensed practitioner at the originating site with the patient at the time of the diagnosis;

(3) The diagnosis must be based using both audio and visual communication; or

(4) The service meets standards of establishing a patient-physician relationship included as part of evidenced-based clinical practice guidelines in telemedicine developed by major medical specialty societies.

(i) After a physician-patient relationship is properly established in accordance with this section, subsequent treatment of the same patient with the same physician need not satisfy the limitations of this section.

(j) Nothing in this section shall be construed to limit the practice of radiology or pathology.

(k) Telemedicine may be practiced without a physician-patient relationship during:

(1) Informal consultation performed by a physician outside the context of a contractual relationship and on an irregular or infrequent basis without the expectation or exchange of direct or indirect compensation;

(2) Furnishing of medical assistance by a physician in case of an emergency or disaster if no charge is made for the medical assistance; or

(3) Episodic consultation by a medical specialist located in another jurisdiction who provides such consultation services on request to a licensed health-care professional.

80 Del. Laws, c. 80, § 3; 81 Del. Laws, c. 65, § 1.