Texas Medical Board Addresses Evolving Face of Call Coverage
Law Feature — July 2016
Tex Med. 2016;112(7):53-59.
By Joey Berlin
For some time, says Thomas Kim, MD, physicians have considered telemedicine something of a novelty, "a fascination at the periphery of health care that's tolerated."
Times and technology are changing, and the high-tech trappings of telehealth are becoming a more popular option for call coverage for busy and often overworked physicians. Dr. Kim, chief medical officer for Austin-based telehealth services company Med2You, says it's time to "try and figure out … a way to bring telehealth front and center as a core service within our health care system."
He says rules the Texas Medical Board (TMB) is proposing for call coverage agreements are part of that effort.
TMB first proposed call coverage agreement rules last January and has been working with stakeholders, including the Texas Medical Association, on refining the language after objections to the initial draft. The latest proposal, which TMB approved in early June for publication in the Texas Register on July 15, sets parameters for nonreciprocal call coverage, in which one physician covers for another but doesn't expect the covered physician to return the favor.
"This is an effort to acknowledge that health care service delivery is evolving, including call coverage, and the TMB is attempting to offer Texas physicians guidance given that we can do things today that we could not before," said Dr. Kim, who represented TMA in stakeholder meetings on the proposed rules.
Nora Belcher, executive director of the Texas e-Health Alliance (TeHA), says TeHA began looking at call coverage when it started hearing from practitioners having difficulty arranging for it under the traditional model, in which they enlist physicians of the same or a similar specialty.
One specialist in a relatively rural part of Texas, for example, approached TeHA because he hadn't taken a vacation in about three years. "There was no one else of his specialty in his community, so he had no one to trade call with," Ms. Belcher says.
"If you're the only physician in the town, what do you do for call coverage?" she asked. "All is well and good if you are in a large group practice or health system practice or hospital-based practice or whatever, but we definitely know that we have physicians in smaller communities who don't necessarily have that ideal partnership situation, where they're just trading call and they're covering each other's patients and it works well."
TMB's latest rule proposal for "Physician Call Coverage Medical Services" lays out the minimum requirements for the traditional reciprocal call coverage agreement and for a nonreciprocal one, which may involve physicians not of the same or similar specialties.
TMB Executive Director Mari Robinson says the board's rulemaking came in response to requests from stakeholders, including TMA. She says the board didn't want to interfere with the traditionally accepted reciprocal coverage model but needed to address situations where the rules needed to be "more expansive" and allow for nonreciprocal coverage.
"The board needed to ensure that there would still be the ability to have the standard of care met, that these two physicians would still communicate, that there would be continuity in the care provided," Ms. Robinson said. TMB also wanted to ensure the call coverage physician who sees the patient on call and not in a reciprocal agreement had access to the patient's information in a way that was meaningful for that call coverage period.
The proposed rule states an agreement for nonreciprocal call coverage must be in writing and must:
- Establish the covering physician's responsibility for meeting the standard of care;
- Include a list of all physicians who may provide call coverage under the agreement; and
- Require the covering physician to have access to the necessary patient medical records when performing the coverage service.
Also, if the covering physician is providing nonemergency care for a diagnosis the covered physician previously made, the covering physician must relay a report to the covered physician within seven days after the end of call coverage. If the care is for a diagnosis the covered physician didn't make previously, the covering physician must furnish the report within 72 hours of the end of call coverage. For emergency care, the report is due "within an appropriate time period according to the circumstances of the emergency situation."
For a reciprocal call coverage agreement among physicians of the same or similar specialties, the proposed rule is much more straightforward: The coverage agreement can be either oral or written and must establish the responsibility of the covering physician for meeting the standard of care and relaying a report "within an appropriate amount of time" after the coverage period ends.
Dr. Kim says for many specialties, after-hours call arrangements are an important part of supporting patients.
"Not all issues happen between 9 and 5," he said. "Historically, these issues were typically addressed over the phone as a triage activity to determine whether this patient needed to go to the emergency room. If not emergent, our ability to respond was fairly limited, such as refilling an established medication until the patient could see their primary provider. Telehealth care solutions now offer the potential to engage patients in more robust ways, day and night."
The goal of the proposed rule, Dr. Kim says, is effectively "to establish sufficient guidance so that we can appropriately and safely accommodate emerging telehealth models offering useful and needed care options."
TMB arrived at the current rule language after stakeholder meetings and adjustments to the original rule proposal published in the Jan. 29, 2016, Texas Register. TMA and a number of physicians objected to a section of the original proposal that said physicians entering into a call coverage agreement would be "mutually responsible" for meeting the standard of care in serving the patient. TMA voiced its objection in written comments, saying that language would create a "new standard of care and significant potential liability, which cannot be supported by Texas statutory or case law."
"Physicians are, and should be, responsible for their own acts, not for the acts of other physicians solely due to on-call arrangements," TMA wrote, adding those arrangements "do not involve 'delegated' acts in which the physician is supervising another health care worker."
After stakeholders discussed the language, the proposed rule now singles out the covering physician as being responsible for meeting the standard of care while serving a patient during call coverage. The covering physician also would have sole responsibility to provide the report resulting from the encounter, which "cannot be delegated to or satisfied by the patient or patient representative providing a report or otherwise recounting the encounter to the physician who requested coverage."
The covered physician would be responsible for making the report part of the patient's medical record.
"I think for the majority of physicians, nothing's going to change," Ms. Belcher said. "They're going to keep doing call the way they've always done call. But hospitals and health systems and physicians have all said, 'We would like to have more options to make sure our patients are taken care of outside of regular business hours or when we decide to take some time off.' And I think this rule does a good job of providing those options."
Hospitals in Texas generally have timely call coverage available for all specialties, according to most respondents in TMA's 2014 Survey of Texas Physicians. (See "Timely Call Coverage.")
Praise and Objections
Peter Antall, MD, chief medical officer of national telehealth services organization American Well, says most states offer only vague regulatory guidance on call coverage. Dr. Antall, a California-based pediatrician, is also the president and chief medical officer for Online Care Group, which provides telehealth services on American Well's platforms.
"As an example, a state might have a regulation that says you may not prescribe medications unless you're providing on-call coverage for a colleague and then without defining what that means," Dr. Antall said. "That's left some ambiguity, and I'll be perfectly frank: I think there are some operators — for example, in the telehealth space — that have taken advantage of that. And they've declared in some states that they are on call for all physicians and unilaterally using this as sort of a loophole in order to provide services in which telehealth may be frowned upon."
Dr. Antall says TMB's proposed requirements for reciprocal coverage agreements reflect what's happening regularly when physicians cover for one another, and he thinks the latest version of the rules makes sense.
"I think the nonreciprocal [section] really clarifies how one might proceed if one is trying to create new ways of providing on-call coverage, whether that means physicians projecting care in a new way, like in telemedicine for example, or the [larger], broad interactions between provider organizations in which they provide services for each other in the off hours," he said.
"It is important in that nonreciprocal [language] to recognize that physicians aren't always in the same specialty, and that doesn't mean they can't cover for each other. I think an example of that is an internist and a family physician; they are separate specialties, but they're providing similar services."
He says the board did "a really good job of attacking the problem — the problem being lack of clarity — and involving various stakeholders."
TMB is proposing the rules, however, while mired in a battle over telemedicine-related regulations, and its opponent in that battle is also objecting to the new proposal. Texas-based national telemedicine provider Teladoc sued TMB on antitrust grounds over a rule the board attempted to adopt in 2015. That rule, the board said, clarified physicians must have a face-to-face visit, either in person or using telemedicine, before they could issue a prescription.
That rule adoption is now on hold while the case sits in a U.S. appeals court. TMB argues it's immune from antitrust liability, but Teladoc asserts otherwise, pointing to a U.S. Supreme Court decision on a Federal Trade Commission antitrust suit against the North Carolina State Board of Dental Examiners to support its case. (See "Seeking Invalidation," April 2016 Texas Medicine, pages 51–57.)
Adam Vandervoort, chief legal officer for Teladoc, says the company previously asserted the now-frozen rule from 2015 would pose a problem for traditional call coverage arrangements in which a covering doctor was treating another physician's patient over the phone without seeing the patient face-to-face.
Teladoc submitted comments in response to TMB's initial call-coverage proposal from January, arguing it "would make it less convenient for patients to obtain medical care." The company said the rules would unreasonably restrict call coverage, and doing so "will increase the price of care, take away choices from Texas patients, and result in patients not receiving the care they need."
Mr. Vandervoort says Teladoc's concerns still stand with TMB's latest call coverage proposal. He says if the prescription rule now at issue in the lawsuit never goes into effect, the proposed call coverage rule is unnecessary "because when the standard of care is otherwise met, nothing today prevents a doctor from interacting with a new patient over the phone, provided video isn't utilized."
He calls the call coverage proposal "a solution in search of a problem, unless and until the enjoined [prescription] amendment goes into effect," and if the board adopts the call coverage provisions, "we would feel that those had been equally illegally adopted under the antitrust law."
"Is the TMB simply digging itself deeper for no reason? Yes," Mr. Vandervoort said.
Following the scheduled publication of the updated rule proposal in the Texas Register, the earliest the board could adopt the rule would be at its meeting in late August.
The Modern Age
Ms. Belcher says one point of confusion on the proposed rule was a misconception that every physician in a call coverage agreement — even those doing reciprocal coverage — would have to produce an agreement in writing. The new nonreciprocal model, she says, is for physicians who want to try something different.
"It took a few tries going through variations on the language," Ms. Belcher said, "but I think the board has done a good job in sort of saying, 'Here is how call works in that regular, traditional model, and if that's what you do, you keep right on doing what you do; nothing is supposed to change. But if that's not an option for you and you want to use technology, we're going to put some requirements on you in terms of sharing records and reporting back.
"That is going to allow people to get more creative, I think, with arranging for call coverage. And we're excited about the potential there for patients to have options to still connect to their doctors through a doctor who's helping with call coverage, and to use medical records and telemedicine and other technologies to give a more complete picture of that patient to the doctor's who's helping."
Dr. Antall says medical boards across the country face a challenge to keep their rules up to date and allow for the emergence of technology in health care.
"We're in a period of time where medicine is modernizing," Dr. Antall said. "Of course, I have a biased view, being involved in telehealth. But medicine, in many cases, is still stuck in the days of faxes and pagers. And the rest of what we all do on a daily basis when we're looking for goods and services is, we go on our smartphone or tablet [to] buy an airplane ticket or buy a book or purchase clothes or shoes."
The development of TMB's proposed rule, Dr. Kim says, is a productive step toward "doing more to address the challenges of health care delivery, including call coverage."
"That's the promise of telehealth: to appropriately apply technology in transformative ways to care for each other the way we should," he said, "in a timely, safe, efficient, and adequate way, no matter what time it is."
Joey Berlin can be reached by phone at (800) 880-1300, ext. 1393, or (512) 370-1393; by fax at (512) 370-1629; or by email.
Timely Call Coverage
In TMA's 2014 Survey of Texas Physicians, 60 percent of respondents agreed when the survey asked them to evaluate the statement, "Timely on-call coverage is generally available for all specialties" at the hospital at which they primarily practiced. The results revealed:
- Strongly agree: 33 percent
- Somewhat agree: 27 percent
- Neutral: 19 percent
- Somewhat disagree: 11 percent
- Strongly disagree: 10 percent
Just 18 percent of respondents pegged "inadequate call coverage" as a cause of poor care quality at hospitals or facilities, ranking last among seven specified causes. Inadequate call coverage ranked well behind inadequate facility staffing (64 percent), inconsistent facility staffing (58 percent), and delays implementing physician orders (46 percent).
Elsewhere in the survey, 57 percent of respondents said their practice privileges at their hospital required them to accept patients who report to the emergency department without a physician. Only 26 percent of respondents said they received payment for being on call or responding to emergency call.
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