Medical Board Wages War Over Telephone Treatment

Teladoc Argues Face-to-Face Meeting Unnecessary for New Patients

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Law Feature — April 2015 

Tex Med. 2015;111(4):45-48.

By Kara Nuzback
Reporter

A case working its way through Texas courts could nix operations at a company that provides telephone patient consultations. Dallas-based Teladoc claims a phone call with a licensed physician can serve as a convenient supplement when patients don't have the time or money to see their primary care doctors. The Texas Medical Board (TMB) argues a physician must examine a new patient face-to-face before providing care remotely. 

Douglas Curran, MD, a family physician with Lakeland Medical Associates in Athens and vice chair of the Texas Medical Association Board of Trustees, says he recently saw a patient — a school teacher with state health insurance benefits — who told Dr. Curran he'd been treated by a physician through Teladoc, a company that allows patients easy access to a physician, but one in which physicians can diagnose and prescribe treatments for patients after a phone conversation, without ever seeing the patient in person.

The patient told Dr. Curran the Teladoc physician diagnosed him with a sinus infection and prescribed antibiotics. But the patient was still showing symptoms of illness when he visited Dr. Curran's office three days later. After a face-to-face examination and an x-ray, Dr. Curran says he diagnosed the patient with pneumonia and saw the patient three days in a row to monitor his progress getting over the infection.

"He ended up not being able to work for a full week," Dr. Curran said. He says if he'd seen the patient in the first stages of his symptoms — when the patient consulted Teladoc — he could've offered a higher level of care. "I think that's going to happen a bunch," Dr. Curran warned.

According to its website, Teladoc offers member patients access to their own medical records, 24-7 access to board-certified physicians, and same-day consultations via video or telephone consultation, depending on what the patient prefers. 

Teladoc's customers include the commercially insured population of Aetna in Texas, 800,000 patients covered by Texas Medicaid managed care plans, about 25,000 Medicare patients, and a number of children in foster care for the Texas Health and Human Services Commission, according to court records.

Some physicians, including Dr. Curran, say a phone conversation is not enough to properly diagnose and treat a patient with whom the physician is unfamiliar. "To be able to look at them and see them and touch them — that tells you what's wrong with people," he said.

TMB agrees; in most cases, the board says, a physician must conduct a physical examination of a new patient before the physician can provide treatment via telemedicine. 

Teladoc sees the lines of telemedicine more broadly, but even if Teladoc comes out on top of the legal battle, TMB is still likely to change the rules of telemedicine to forbid Teladoc's practices.

Face-to-face

Teladoc, Inc. v. Texas Medical Board stems from a June 2011 letter to Teladoc, in which TMB said physicians working with the company were jeopardizing their licenses by failing to "establish a proper professional relationship with the patient," which TMB argued includes conducting an initial face-to-face meeting before providing treatment remotely. 

Teladoc sued TMB, arguing the letter constituted an "unpublished rule" in violation of the state's Administrative Procedure Act (APA). TMB argued its letter merely restated its existing requirements for telemedicine.

Dr. Curran says he served as an expert witness in the case. In his testimony, he agreed with TMB's stance on face-to-face visits being essential to patient care. 

Further, he testified that Teladoc offered no care plan and no follow-up care for patients.

"What Teladoc was doing was treating patients on the phone who had never been seen in person," he said. 

Both Teladoc and TMB asked the district court for a summary judgment. TMB came out on top, with the court concluding TMB's letter was not an unpublished rule.

Teladoc appealed.

On Dec. 31, 2014, the Texas Third District Court of Appeals reversed the lower court ruling and held that TMB violated APA by altering rules related to telemedicine without initiating the formal rulemaking process. 

As of February, TMB had filed preliminary documents with the Texas Supreme Court but had not yet filed an appeal. Read the most recent Supreme Court documents in the case.

Mari Robinson, executive director of TMB, says the board found the appeals court's decision to be a "public emergency," and TMB adopted an emergency rule Jan. 16, which states, effective immediately, "a face-to-face visit or in-person evaluation is required before a practitioner can issue a prescription for drugs." 

Teladoc sought and won a temporary restraining order against TMB Jan. 20 that prevented TMB from enforcing its emergency rule and allowed Teladoc to continue to operate under its current model. TMB is now in the process of formally amending its rule to clarify that physicians must conduct a physical examination of a new patient before they can provide care using telemedicine. 

"Proposed rule amendments were approved for publication and comment at TMB's February meeting and will be considered for final adoption in April," Ms. Robinson said.

Austin orthopedic specialist and TMA Past President Bruce Malone, MD, testified for TMB at a Feb. 2 hearing to defend its emergency rule. 

"To summarize [my testimony], I think that no doctor can properly diagnose a condition by phone questionnaire and no face-to-face [meeting]," he said. "When I answer an emergency call at night from an established patient, I am not diagnosing their condition, I am only deciding whether they need an emergency face-to-face meeting to do so. I think it is important that all doctors understand the importance of maximizing patient safety by adhering to scientific principles."

Teladoc: Patients Need More Access to Primary Care

Meredith Adams, of Dallas communications agency FleishmanHillard, speaking on behalf of Teladoc, argues caring for patients without a face-to-face visit is common practice. "The reality is that doctors do prescribe medication without seeing a new patient, and they do so safely," she said.

She says the appeals court's ruling in favor of Teladoc has no broader implications for the medical community. "The court's ruling is a victory for Texas patients, who retain the ability to choose telehealth services and talk to a doctor when they are unable to see their own physician, meeting the needs of our population," she said.

Ms. Adams says Teladoc is designed to supplement — not replace — primary care physicians. "Without this option, what will the mom with a feverish child do in the middle of the night? Or the business traveler who comes down with the flu? The ER should not be their only choice for treatment," she said.

Ms. Adams also notes the shortage of primary care physicians in Texas and nationwide is expected to worsen. Last year, she says, Teladoc conducted nearly 300,000 consults across the United States with a 91-percent resolution rate. 

"Teladoc has never had a malpractice claim," she added.

Teladoc does have backing from a number of political heavy-hitters. The company is a board member of the Alliance for Connected Care, which advocates telehealth reform and remote patient monitoring. Other board members of the alliance include Verizon, CVS, and Walgreens. Former U.S. Senate Majority Leaders Tom Daschle and Trent Lott and former Sen. John Breaux are leaders in the alliance.  

According to the Center for Responsive Politics, the alliance gave $860,000 last year to three lobbying firms — Squire Patton Boggs, DLA Piper, and Akin Gump — for issues related to health care, Medicare and Medicaid, and telecommunications.

Telemedicine Continues to Grow

Courtney Newton, an administrative law expert at Sharp & Cobos law firm in Austin, says because of the appeals court ruling in favor of Teladoc, TMB may be more reluctant to respond to questions from physicians and health organizations. "The result may be that it takes longer for the board to respond to queries in the future, since any response will have to be reviewed to ensure that it is correct and appropriately stated," she said.

Ms. Newton says a state agency does not need to initiate a rule for every question. "However, the agency does need to be very careful when citing a rule to ensure that they are not going beyond the mere restatement of a formally promulgated rule or statute," she added. In other words, physicians should be expected to follow only the plain language of the law.

"Because the TMB's 2011 letter to Teladoc specifically went beyond the existing language of the rule and effectively changed the text, the holding is that the board went beyond the scope of their rule," Ms. Newton said. 

She also noted that TMB sent a copy of its letter to TMA. "The board wanted the TMA membership made aware of this position," she said.

As medical technology advances, the board likely will continue to seek stakeholder input on existing rules and the impact on patient care in Texas, says TMA Vice President and General Counsel Rocky Wilcox

According to an October 2014 memo from TMB, the board held a stakeholder meeting on Oct. 31, 2014, to discuss another expansion of the board's rules on telemedicine, specifically regarding prescribing practices and telepsychiatry. Ms. Robinson says future stakeholder topics will focus on telemedicine for homebound patients.

Dr. Curran says he's not taking a hardline stance on the issue. While touching patients and seeing them face-to-face is crucial, he says, the medical board must be flexible and accepting of new tools and technology that can benefit patients.

"I hope the one who comes out on top is the patient," he said. 

Kara Nuzback can be reached by phone at (800) 880-1300, ext. 1393, or (512) 370-1393; by fax at (512) 370-1629; or by email.

Legal articles in Texas Medicine are intended to help physicians understand the law by providing legal information on selected topics. These articles are published with the understanding that TMA is not engaged in providing legal advice. This is not a substitute for the advice of an attorney. When dealing with specific legal matters, readers should seek assistance from their attorneys.

SIDEBAR

Telemedicine Actions Around the Nation

Texas is not the only state grappling with the intricacies of telemedicine. Other state courts and legislatures are also fine-tuning the safest and most efficient ways to use new technology to help physicians care for patients.

Senate Bill 478, which is up for debate in the Florida Legislature, would clarify that the standards of care for physicians practicing telemedicine are the same as for physicians caring for patients in person. The bill also says a physician may conduct a patient evaluation via telemedicine and treat the patient without researching the patient's medical history or meeting with the patient in person. Finally, the bill would let physicians prescribe controlled substances via telemedicine as long as they don't prescribe the drug for chronic, nonmalignant pain. 

House Bill 1029 before the Colorado Legislature would require carriers to pay physicians for telemedicine care for a patient in a county with more than 150,000 people. (Currently, payment is required only for patients in more rural counties.) The bill would also forbid an insurance plan from requiring in-person care when telemedicine is appropriate. The bill would also prohibit insurance carriers from charging more for telemedicine services.  

Senate Bill 5175 in Washington State would guarantee all medically necessary telemedicine services are reimbursable under public employee benefit plans, health carriers, and managed care organizations.  

Similarly, Senate Bill 144 in Oregon would expand insurance coverage to telemedicine services. Currently, Oregon law requires insurance coverage only for telemedicine services that take place in a medical facility. 

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