Telemedicine Acceptable Within Limits
Cover Story – June 2013
Tex Med. 2013;109(6):16-22.
By Crystal Zuzek
Technology can improve patient care, but it's no substitute for face-to-face patient exams. No one knows that better than Douglas Curran, MD. When a concerned mother contacted him about her teenaged daughter's bladder infection, he simply could have called in a prescription. But when he realized he hadn't seen the girl in quite some time, Dr. Curran insisted on examining her in person.
"I noticed right away that my patient had put on a considerable amount of weight. When I examined her, I realized she was in labor. Her mother had no idea."
The Athens family physician says this experience illustrates the need to examine patients in person and the value of an established patient-physician relationship.
"Physicians can't rely on the telephone or the Internet in every situation," said Dr. Curran, a member of the Texas Medical Association Board of Trustees.
Like other physicians, Dr. Curran believes a physician's relationship with a patient is a sacred connection that fosters trust. Evolving technology, however, challenges them to communicate and consult with patients electronically without fragmenting the relationships or compromising patient safety. The emerging practice of telemedicine allows physicians to consult with patients over the telephone, through live Internet chats, with a webcam, or by other electronic means.
Physicians and lawmakers are examining telemedicine's ability to expand patient access to care via technology while ensuring safe, high-quality health care. TMA physicians testified on several telemedicine bills in this year's session of the Texas Legislature. TMA worked to make sure the bills guarantee appropriate care and that telemedicine practitioners comply with Texas Medical Board (TMB) rules.
TMB's telemedicine rules cite a physical examination as a minimum criterion for establishing a patient-physician relationship. They say distant site providers who use telemedicine must establish a proper patient-physician relationship that at a minimum includes:
- Establishing that the person requesting the treatment is who he or she claims to be;
- Diagnosing through acceptable medical practices such as patient history, mental status examination, physical examination, and appropriate diagnostic and laboratory testing to establish diagnoses and identify underlying conditions or contraindications, or both, to treatment recommended or provided;
- Discussing with the patient the diagnosis and the risks and benefits of various treatment options; and
- Ensuring the availability of appropriate follow-up care.
TMB rules define a distant site provider as a Texas-licensed physician, physician assistant, or advanced practice nurse "who is supervised by and has delegated authority from a licensed Texas physician, who uses telemedicine to provide health care services to a patient in Texas." They also stipulate that an online or telephonic evaluation solely by questionnaire does not constitute an acceptable standard of care.
Read TMB's rules and frequently asked questions online.
Norman Chenven, MD, Austin Regional Clinic (ARC) founder and chief executive officer, is a consultant to Teladoc, a telemedicine company that has done business in Texas since 2005. He says telemedicine's enhanced access to care inevitably can and should improve quality of care and should help lower costs.
"I believe the greatest benefit of telemedicine will occur in chronic disease management. Telemedicine makes it easier for patients to manage their own care under the guidance of a physician," he said.
Telemedicine should be allowed to evolve without being buried under a mountain of regulations, Dr. Chenven says.
"The standard of care placed on physicians who practice telemedicine doesn't change. If a phone conversation with a patient is inadequate, the physician can use good judgment to provide another option for care. We need to trust that physicians know what they're doing in the realm of telemedicine and not create rules that make it more difficult for doctors to treat their patients," Dr. Chenven said.
Telemedicine in the Courts
TMB Executive Director Mari Robinson says TMB amended its telemedicine rules in 2010. She says the rules, in part, provide additional safeguards that help ensure virtual physician consultations don't neglect the physical examination.
When TMB revised the rules, it received input from several interested parties, including TMA, the Texas Hospital Association, the Texas Health and Human Services Commission, the Texas Association of Business, the Texas Public Policy Foundation, and companies that provide telemedicine services.
Teladoc uses physicians to treat patients over the phone or via secure online video, although Teladoc does not conduct video consultations in Texas.
According to Teladoc's website, www.teladoc.com, contracted physicians treat common medical conditions such as sinus problems, respiratory infections, allergies, urinary tract infections, cold and flu symptoms, and other nonemergency illnesses.
In Teladoc's comments on the proposed board rules, the company objected to provisions about distant site providers who perform telemedicine services somewhere other than an established medical site. They require distant site providers to "see the patient one time in a face-to-face visit before providing telemedicine medical care." (The rules define a patient site presenter or telepresenter as "the individual at the patient site who introduces the patient to the distant site provider for examination, and to whom the distant site provider may delegate tasks and activities.")
The rules also say distant site providers can see patients "without an initial face-face to visit, provided the patient has received an in-person evaluation by another physician who has referred the patient for additional care and the referral is documented in the medical record."
Teladoc contends telemedicine physicians can use many other generally accepted means to provide medical services that meet the standard of care. The company's examples included use of health records, questions and answers between the patient and physician using interactive media to determine a patient's medical condition, and lab tests.
The medical board disagreed with Teladoc's comments.
In 2011, Nancy Leshikar, TMB general counsel, sent Teladoc a letter saying the board does not believe Texas physicians can rely on Teladoc's statement that it complies with TMB rules if they choose to participate in Teladoc's program. She added that "any representation you [Teladoc] make regarding Teladoc's program being in conformance with the TMB's rules will be directly and firmly refuted by the board."
Teladoc then sued TMB and sought an injunction to prevent it from enforcing its interpretation of the rules that require a face-to-face meeting before a physician can diagnose or treat a patient.
The company's lawsuit says Texas-licensed physicians affiliated with Teladoc have access to a patient's electronic health record (EHR) and do not use a questionnaire to conduct telephone consultations. "The Teladoc physician … evaluates each patient individually based on his or her reported symptoms and the responses to questions asked by the physician during the consultation," the lawsuit says. Teladoc says its physicians do not prescribe controlled substances, and at the end of telephone consultations, patients can share findings with their primary care physician or they can give Teladoc physicians permission to transmit the information from the consultation to their primary care physician.
Teladoc maintains that TMB rules don't "require an in-person physical examination in all circumstances before a physician may prescribe medication to a patient." It asked Travis County District Judge Amy Clark Meachum to declare the board's interpretation of the rules invalid and inapplicable to Teladoc. Teladoc said TMB's rules are "fatal" to its business in Texas.
However, Judge Meachum ruled in favor of TMB last fall, prompting Teladoc to appeal.
Matt Dow, an Austin attorney representing Teladoc, said the company believes the law is on its side and "is confident that it will be successful on appeal." He said Judge Meachum's order prohibits TMB from enforcing the regulations during the appeal, thus "Teladoc continues to serve the members of its health plan and employer customers in Texas."
Ms. Robinson couldn't comment on Teladoc's business practices pending the appeal. She did, however, stress that physicians must establish a relationship with patients before using telemedicine or the telephone.
"If a physician has never seen a patient, has no relationship with a patient, and tries to treat that patient over the phone for the first time, that's going to be a problem. That physician has never conducted an exam of the patient and has no medical records for the patient. That type of setup isn't conducive to making an appropriate medical diagnosis and violates the board's rules," she said.
Telemedicine can be especially valuable to patients living in rural and underserved parts of Texas. Regardless of location, Dr. Curran stresses the need for an established patient-doctor relationship before providing care via technology.
"I know every single one of my patients I treat using telemedicine," he said. "Many of these patients I've known for decades. I frankly don't know how any physician could provide high-quality care over the phone to a patient the physician does not know or has not seen in person."
Physicians who violate TMB telemedicine rules face penalties ranging from a fine to having their licenses suspended or revoked, depending on the facts in the case. Ms. Robinson says the board can't quantify the number of telemedicine complaints it receives or issue a data report for telemedicine-related complaints. She did highlight a formal complaint TMB filed with the State Office of Administrative Hearings in July 2011.
The board's complaint states a physician licensed in Pennsylvania and Texas violated telemedicine rules, engaged in nontherapeutic prescribing, prescribed drugs without first establishing a proper professional relationship with a patient, and failed to maintain adequate patient medical records.
The complaint stems from the physician's treatment of a 1-year-old patient in September 2010. Teladoc directed the patient's mother to the physician, who the board says had no established relationship with the child, hadn't examined the patient, and hadn't reviewed the patient's medical records. The complaint says the physician determined over the phone that the child had an upper respiratory infection and prescribed an insufficient dosage of Amoxil. According to documentation, the patient' temperature reached 104 degrees the day after taking the medication.
The board asked the administrative law judge to conduct a hearing and issue a proposal for decision. At press time, the case was pending.
Telemedicine in the Legislature
Lawmakers filed several bills on telemedicine this session. Dr. Curran says legislators' interest in telemedicine reflects their desire to expand access to care to patients in all parts of Texas.
"As more people acquire health insurance and if Medicaid coverage is expanded, the state is going to have to explore ways of connecting more patients with physicians," he said.
House Bill 2017 by Rep. Four Price (R-Amarillo) would require insurance companies to pay physicians for after-hours telephone consultations. Thomas Kim, MD, an Austin internist and psychiatrist, testified for the bill on behalf of TMA. Dr. Kim uses telemedicine in his practice and develops and evaluates telemedicine technologies.
He told House Insurance Committee members that technology can improve access to care and quality and reduce costs. Typically, insurance companies pay vendors to provide insured patients with access to the vendors' physicians for after-hours care via phone. This arrangement often means local physicians – who don't have contracts with the vendors – are not paid for these phone consultations. Disallowing payment for telephone consultations provided by local physicians is counter to TMA's mission to improve the health of all Texans.
"Advances in technology, including broadband Internet, smart devices, and social media, have created an extraordinary level of connectedness. But even with the growing number of ways to share, message, or connect, the telephone continues to serve as an important way to communicate with one another, including health care service delivery," he told the committee.
Like many physicians, Dr. Kim relies on the telephone in caring for his patients. The nature of his calls can vary from simple medication questions to exploring whether a patient should go to the emergency department. He says being available by phone ensures support for his patients in challenging circumstances. Without telephone support, Dr. Kim testified, "patient care can suffer in terms of rising costs and diminished quality of care."
Dr. Kim recounted for the legislature instances in which telephone consultations improved patient care and contained health care costs. In one situation, Dr. Kim worked with members of his health care team by phone to evaluate a patient in a juvenile detention center who had voiced suicidal thoughts. Dr. Kim was out of town but was able to determine over the phone that his patient was upset and not suicidal, avoiding a costly visit to the emergency department.
"By establishing parity for telephone consultation payment, all parties involved can realize value. Avoidable costs are removed from the system, patient satisfaction improves by lowering the access bar, quality of care rises with improved patient engagement, and community practices become more sustainable and potentially more effective," he said.
Dr. Chenven echoes the need to ensure physicians receive payment for phone consultations.
"Physicians who provide continuity of care via phone consultation should be paid for their time and the infrastructure costs. It doesn't make sense to have physicians spend hours on the phone caring for patients and not getting paid for it."
Howard Marcus, MD, an internist at ARC and a consultant to Teladoc, says the primary challenge facing physicians who practice telemedicine is an economic one.
"We don't get paid unless we see the patient in person. If third-party payers compensated telephone and email consultations, we could provide health care more efficiently and at lower cost for that subset of health care issues that do not require a hands-on physical examination," Dr. Marcus said.
He adds that the failure to compensate physicians for these services undermines the viability of primary care practices while driving up the cost of care.
The House Insurance Committee also heard testimony on House Bill 1806 by Rep. John Smithee (R-Amarillo). Dr. Curran testified on the bill on behalf of TMA and the Texas Academy of Family Physicians (TAFP). Dr. Curran cited TMA's concerns with the bill as originally drafted:
- The bill creates a new standard of care for telemedicine, which conflicts with the Medical Practice Act and TMB rules.
- It contains an overly broad definition of telemedicine, which does not contain necessary elements to address scope of practice and the specific exclusion of telephone services.
- It does not require a distant site presenter.
- It allows a physician assistant or advanced practice registered nurse to provide telemedicine services and, as written, would permit those providers to make a diagnosis, which is outside the scope of practice of their licenses.
- It specifically allows the creation of a patient-physician relationship during an initial encounter by telemedicine, which is not in accordance with the standard of care.
TMA supports TMB's telemedicine medical services rules.
Dr. Curran told the committee the TMB telemedicine rules "are comprehensive and were adopted after thorough stakeholder input." He added they "address the requirement of a prior patient-physician relationship, protection of privacy, adoption of protocols to prevent fraud and abuse, the use of a patient site presenter, and the delegation of tasks and activities to a patient site presenter during a patient encounter."
TMA presented the following amendments to HB 1806 to help ensure patient safety and high-quality care:
- Ensure telemedicine services meet TMB rules and the traditional standard of care.
- Establish requirements for a true face-to-face consultation between a patient and a physician providing a telemedicine medical service.
- Establish a referral network and follow-up care from the physician providing the care.
- Require that patients continue to receive care from the same physician who provided the telemedicine medical service.
- Establish standards for adequate physician delegation and supervision of nonphysician health care professionals who assist in telemedicine services as distant site presenters.
- Establish the maximum number of health professionals to which a physician may delegate and supervise through a telemedicine medical service.
- Add language prohibiting discrimination against local physicians willing to provide the same level of after-hours access whether through telephonic consultation or in-person visits.
Dr. Curran concluded his testimony by saying TMA and TAFP are willing to work with the committee to develop a substitute to HB 1806 that ensures telemedicine services allow safe access to care for more Texas patients.
Bruce Moskow, MD, an Austin emergency physician, testified on Senate Bill 830 by Sen. Charles Schwertner, MD (R-Georgetown), on behalf of TMA and the Texas College of Emergency Physicians. Dr. Moskow said the bill would preclude the Texas Department of State Health Services from "requiring the physical presence or physical availability of a physician" capable of rendering critical care services at a Level IV trauma facility.
As drafted, SB 830 would allow telemedicine to replace the on-site physician in the trauma teams in Level IV trauma centers in counties of 50,000 or fewer residents.
At press time, SB 830, HB 1806, and HB 2017 were pending in their respective committees. For updated information on these and other bills, visit the TMA website.
Dr. Curran says telemedicine can be particularly effective in consulting with specialists. He works as a hospitalist at East Texas Medical Center. During a shift, one of his medical partners' patients came into the emergency department. The disoriented man, who'd recently had surgery to remove a benign brain tumor, had been in an automobile accident. Dr. Curran ordered a computed tomography (CT) scan, which showed a swelling where the tumor was removed. He called the patient's neurosurgeon 60 miles away, and they both examined the CT scan using an EHR system.
"Working together, we decided to start the patient on medication and admit him to the hospital. Using technology, we were able to avoid transferring the patient, saving the system a great deal of money and ensuring quality, safe care. That's telemedicine at its best," Dr. Curran said.
Sidney Ontai, MD, a Plainview family physician and member of the TMA Ad Hoc Committee on Health Information Technology, has used telemedicine since 2001. He uses videoconferencing technology to care for established patients 60 miles away in the small towns of Turkey, Earth, and Hart.
"I see the same kinds of patients there for the same problems that I see in my garden-variety family practice. The patients themselves tend to present more for urgent care problems, but I do some chronic disease management, as well. My model has always been to have the telemedicine visit be the same as a regular face-to-face visit," he said.
Dr. Ontai's telemedicine clinics have full-time medical assistants, certified nursing assistants, and registered nurses who are distant site presenters. They check patients' vital signs, take photos, and perform lab tests.
"The fact is my documentation is actually better in the telemedicine clinic. When I look into a patient's ear or auscultate their heart, my distant site presenter takes a picture of the otoscope image, and a digital file of the image is stored permanently in the patient's record," he said.
Ms. Robinson says telemedicine is full of opportunity for physicians who embrace technology to facilitate patient care.
"When telemedicine is practiced in alignment with board rules, it provides a great way for physicians to reach patients who do not have access to care. It's also a good way to connect patients in remote parts of the state to specialists," she said.
Crystal Zuzek can be reached by telephone at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by email.
TMA Online Communication Policy
TMA has long-standing policy covering online communication between physicians and patients and guidelines for fee-based online consultations.
It urges physicians to develop written electronic patient communication procedures on avoiding emergency use, protecting patient medical information, appropriate expectations for response times, hours of operation, patient-identifying information that should be used in all communication, types of transactions that will be permitted electronically, and quality oversight.
The policy also recommends conducting online patient-physician communications over a secure network, with provisions for authentication and encryption. The physician is responsible for taking reasonable steps to authenticate the identity of correspondents in an electronic communication and to ensure the recipient is authorized to receive the information.
In addition, TMA established guidelines for fee-based online consultations, defined as clinical consultations "provided by a physician to a patient using the Internet or other electronic communications network in which the physician expects payment for the service."
To read "Guidelines for Electronic Communications (Email) with Patients" from the Texas Medical Board and the Texas Medical Liability Trust, visit www.texmed.org/HealthIT, scroll down, and click on E-Communication.
June 2013 Texas Medicine Contents
Texas Medicine Main Page