TMB Leery of Treating Patients Online
Cover Story - March 2010
Tex Med. 2010;106(3):16-22.
By Crystal Conde
A physician's relationship with a patient is a sacred connection that fosters trust. Evolving technology, however, is challenging physicians to communicate and consult with their patients electronically without fragmenting those relationships.
That's why the emergence of a new telemedicine service in Texas is raising questions. Can it expand patient access to care by electronic means, while at the same time ensure the delivery of safe, high-quality health care?
Minnesota-based OptumHealth, a division of UnitedHealth Group, launched NowClinic in Texas in December. It allows physicians who are licensed in Texas and actually practice here to have clinical consultations with patients over the telephone, through live Internet chats, or via Webcam. Physicians can use the technology to make diagnoses and prescribe medications, except controlled substances. For more information on NowClinic, read OptumHealth's frequently asked questions document online . Click on the Solutions link.
The Texas Medical Board (TMB) worries this and other methods of virtual physician consultation may neglect one of the staples of basic health care and a keystone of the physician-patient relationship: the physical examination.
Mari Robinson, JD, TMB executive director, says physicians who diagnose and treat patients online without an established relationship could violate board rules. According to those rules, a physical examination is one of the minimum criteria for establishing a physician-patient relationship. (See " TMB Rules on Internet Use in Medical Practice .")
The Texas Medical Association shares that concern. TMA has long-standing policy covering online communications between physicians and patients. The policy includes provisions on secure communication and guidelines for fee-based online consultations. (See " TMA Policy for Online Communication .")
Physicians who violate TMB rules on telemedicine can face penalties as light as a fine or as heavy as a license suspension or revocation, Ms. Robinson says. She adds that the board determines sanctions on a case-by-case basis.
At a telemedicine stakeholders meeting in January, Ms. Robinson said TMB has received complaints arising from adverse events that occur when physicians treat and diagnose patients without seeing them in person. For example, the board disciplined a physician over the summer for failing to do a thorough evaluation and examination of a patient treated for pain. The physician relied on the patient's statements instead.
OptumHealth executives have been talking to TMB and TMA to clarify whether NowClinic meets all Texas legal requirements. James V. Springrose, MD, senior director of Provider Strategies for OptumHealth Care Solutions, says the company has closely examined TMB's rules regarding the requirement that a physician establish a relationship with a patient before using the Internet to evaluate a patient.
"It appears to our legal counsel that physicians aren't precluded by TMB regulations from practicing in an online environment. This is an area of exploration and discussion we will have with TMB," Dr. Springrose said.
Ms. Robinson makes it clear that TMB hasn't endorsed or made any statement of approval about NowClinic. She says physicians should take time to investigate a company's operations before they decide whether to participate in NowClinic or any telemedicine service.
"If a physician's participation in a telemedicine service is contrary to board rules or in violation of the standard of care, the board will hold the physician responsible," Ms. Robinson said. "It's not a good idea for a physician to take someone's word for it that they have the board's approval."
The discussion surrounding safe, appropriate patient care in a virtual environment comes as TMB considers changing its rules governing the practice of telemedicine.
"At this point, TMB rules are trying to catch up with the state of technology," Ms. Robinson said. "The rules that apply to telemedicine are currently in flux. Physicians who comply with TMB rules today may not comply a few months from now."
Ms. Robinson says TMB plans to vote on adopting amended rules at its April board meeting. To view and comment on the proposed changes to TMB's rules related to telemedicine, click here .
NowClinic in Practice
To keep Texas physicians out of hot water with the board, Rob Webb, OptumHealth Care Solutions chief executive officer, says NowClinic limits their physicians' use of the service to clinical consultations with existing patients with whom they have established relationships.
Mr. Webb characterizes NowClinic's launch in Texas as "not using the full capabilities of the system."
Ms. Robinson says TMB hasn't approved this modified system from OptumHealth.
At press time, MedicalEdge Health Group PA and Genesis Physicians Group, both in Dallas; Texas Health Care LLC in Fort Worth; Plano Physician's Group; and Village Health Partners in Plano had contracted with NowClinic.
OptumHealth promotes NowClinic in Texas as a way physicians can expand access to health care to medically underserved areas and to the uninsured.
"NowClinic is a way OptumHealth can compensate physicians financially for this type of consultation service," he said. "This can provide an additional source of revenue for a practice."
Christopher Crow, MD, a Plano family physician at Village Health Partners, took part in a NowClinic test project in December. He plans to use the technology to care for existing patients who can't make it into the office. He says NowClinic adds a visual dimension to electronic communication between physicians and patients.
"We've [doctors] been e-mailing patients for a long time, and we talk on the phone with our patients every day. Adding video capability to the interaction between a patient and a physician isn't a bad thing. Physicians use medical judgment in all patient interactions, whether they take place online, over the phone, or in person," Dr. Crow said.
Indeed, Dr. Springrose says physicians should use their judgment to determine whether an online consultation is appropriate. He says physicians may recommend an in-person exam.
TMB rules on Internet use in medical practice require a physician-patient relationship to include availability of the physician or coverage of the patient for follow-up care. Dr. Springrose says NowClinic physicians can use the system to ask patients to come into the office for an in-person or online follow-up visit. They also can communicate with patients through secure messaging, a phone call, or a letter.
Dr. Crow says that while NowClinic potentially can enhance patients' access to medical care, its lack of coverage by insurance plans hinders its widespread use.
Currently, physicians and patients can't be reimbursed for NowClinic services by a health plan, Medicare, or Medicaid. Mr. Webb points out that OptumHealth is a division of UnitedHealth Group and is separate from UnitedHealth Care, which doesn't cover NowClinic services for its members.
To participate in NowClinic, however, OptumHealth requires physicians to be part of UnitedHealthcare's network. Mr. Webb says OptumHealth will "work with NowClinic customers to figure out if they'd like the service to be covered by insurance."
He adds that patients who have a flexible spending account, health reimbursement account, or health savings account may submit NowClinic fees for reimbursement.
NowClinic is available to patients, regardless of insurance status, for a flat fee of $45 for the first 10 minutes, with the option of extending the visit another three minutes at no charge. The charge for each additional five minutes is $10.
According to Dr. Springrose, physicians keep "a majority" of the $45 fee. He would not elaborate on what a "majority" means. He says OptumHealth and American Well, which provides the system platform for NowClinic, divide the remainder of the payment after all expenses, including medical liability insurance coverage for NowClinic physicians.
UnitedHealthcare network physicians who practice at Village Health Partners may choose whether they want to take part in NowClinic to treat existing patients, Dr. Crow says. At press time, he didn't know how many of the practice's nine physicians planned to sign on as NowClinic participants.
A Cautionary Tale
The Hawaii Medical Association (HMA) has experience finding an appropriate balance between access to care and quality of care via telemedicine. OptumHealth's NowClinic technology partner, American Well, introduced a similar online clinical consultation service in Hawaii early last year.
The Hawaii Medical Service Association (HMSA), the state's Blue Cross Blue Shield licensee, was the first insurance plan to sign on with American Well. HMSA, which holds the largest market share of any health plan in Hawaii, uses American Well's Web service to give members access to a physician network 24 hours a day, seven days a week.
April Donahue, executive director of HMA, says online medical care through American Well isn't limited to HMSA-insured members. She says any Hawaii resident with a credit card can receive treatment and diagnosis.
While the medical association didn't take a specific position on American Well's service, it did voice some concerns. Chief among them was the lack of patient medical records available for physician reference.
Hawaii physicians participating in American Well's service see new patients, not just those with whom they've previously established a relationship. She says physicians often have access only to a patient's claims data, which may not be comprehensive.
She says HMA members also worry about enhanced exposure to liability when caring for patients online rather than in person.
"If doctors had any questions, we asked them to contact their own liability insurance carriers," she said.
Texas physicians participating in NowClinic automatically receive liability insurance coverage through Lexington Insurance Company at no additional cost.
Jill McLain, Texas Medical Liability Trust (TMLT) senior vice president of claim operations, says TMLT's policy doesn't specifically exclude telemedicine, but she suggests physicians consult with their underwriters.
"Anyone contemplating this practice would be well advised to check with their underwriter to be sure that any coverage issues are identified and managed. There could be advantages to obtaining a separate policy for this portion of the practice," Ms. McLain said.
Despite HMA's concerns, HMSA won unanimous support for Senate Bill 1676 - legislation that says "a telehealth mechanism may be used to establish a health care provider-patient relationship."
Ms. Donahue says SB 1676 doesn't contain criteria necessary to establish a patient-physician relationship. It only says a physician must be licensed in Hawaii to use telemedicine to establish a patient-physician relationship.
HMA testified before the Hawaii Legislature that telemedicine should be allowed only after a patient-physician relationship has been established with an office visit that would generate a patient history and records. The legislation does not quell the association's concern about the inherent patient safety risks involved when a physician diagnoses a patient he or she has never seen before.
"What we've learned is that there's a fine line between access to care and quality of care," Ms. Donahue said. "We understand telehealth will improve access to care, but it needs to be done in a well-thought-out, safe manner."
Sidney Charles Ontai, MD, MBA, a Plainview family physician and chair of TMA's Council on Practice Management Services, has made presentations to TMA members about best practices in telemedicine.
"It's probably safer to have telemedicine function within a doctor-patient relationship already established by a face-to-face visit," he said.
He adds it might also be a good idea for physicians to become familiar with telemedicine before using it in practice. Physicians can expose themselves to new technologies by working with an experienced colleague, taking a course, or doing a rotation during training, he says, so they clearly understand the benefits and limitations of the technologies.
"There are myriad ways of using telemedicine, from running ICUs remotely to doing blood pressure screening in a primary care practice, so that exact use and need for training and oversight will depend a lot on the precise application," Dr. Ontai said.
Regardless of telemedicine's application, Ms. Robinson stresses the same standards that apply to traditional, face-to-face medical practice apply to the practice of telemedicine.
"Telemedicine, like traditional medicine, can be done very well or very poorly. TMB tries to develop sufficient safeguards to ensure it's done properly and in a way that protects the public," she said.
Dr. Ontai recommends TMB and Texas lawmakers primarily consider patient safety and access to care within a medical home when developing telemedicine regulations.
"Telemedicine could be used to strengthen primary care and the medical home, or it could be used to cherry-pick lucrative urgent care episodes away from medical homes, putting ever scarcer primary care providers out of business and further exacerbating the already serious primary care manpower crisis," he said. "The American health care system doesn't need more fragmentation."
Crystal Conde can be reached by telephone at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by-email at Crystal Conde .
TMB Rules on Internet Use in Medical Practice
Texas Medical Board (TMB) rules guide physicians' use of the Internet in medical practice. Chapter 174 of the Texas Administrative Code says physicians who use the Internet must ensure establishment of a proper physician-patient relationship that at a minimum includes:
- Establishing that the person requesting the treatment is in fact who the person claims to be;
- Establishing a diagnosis 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 and/or contraindications to treatment recommended/provided;
- Discussing with the patient the diagnosis and the evidence for it and the risks and benefits of various treatment options; and
- Ensuring the availability of the physician or coverage of the patient for appropriate follow-up care.
To view TMB's rules online, click here .
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TMA Policy for Online Communication
Texas Medical Association policy 290.009 adopted by the House of Delegates urges physicians to develop written policies covering electronic patient communication. Such policies should address avoiding emergency use, heightened consideration of use for highly sensitive medical topics, appropriate expectations for response times, hours of operation, patient-identifying information that should be used in all communications, types of transactions that will be permitted electronically, and quality oversight mechanisms.
The policy also says online patient-physician communications should be conducted over a secure network, with provisions for authentication and encryption in accordance with eRisk, the Health Insurance Portability and Accountability Act, and other appropriate guidelines. The physician is responsible for taking reasonable steps to authenticate the identity of correspondents in an electronic communication and to ensure recipients' authorization to receive 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."
TMA policy says physicians have the same obligations for patient care and follow-up delivered via fee-based online consultation as in face-to-face, written, and telephone consultations.
The following provides additional guidance for fee-based online consultations:
- Preexisting relationship . Online consultations should occur only within previously established doctor-patient relationships.
- Informed consent . Before the online consultation, the physician must obtain the patient's informed consent to participate in the consultation for a fee. The consent should include explicitly stated disclaimers and service terms pertaining to online consultations. The consent should establish appropriate expectations between physician and patient.
- Medical records . Records pertinent to the online consultation must be maintained as part of, and integrated into, the patient's medical record.
- Fee disclosure . From the outset of the online consultation, the patient must be clearly informed about charges that will be incurred and that the charges may not be reimbursed by the patient's health insurance. If the patient chooses not to participate in the fee-based consultation, the patient should be encouraged to contact the physician's office by phone or other means.
- Extent of consultation . An online consultation should be substantive and clinical in nature and be specific to the patient's personal health status.
- Identity disclosure . Clinical information provided to the patient during the course of an online consultation should come from, or be reviewed in detail by, the consulting physician whose identity should be made clear to the patient.
- Available information . Physicians should state, within the context of the consultation, that it is based only upon information made available by the patient to the physician during, or prior to, the online consultation, including referral to the patient's chart when appropriate, and therefore may not be an adequate substitute for an office visit.
- Online consultation vs. online diagnosis and treatment . Physicians should attempt to distinguish between online consultation related to preexisting conditions, ongoing treatment, follow-up questions related to previously-discussed conditions, etc., and new diagnosis and treatment. New diagnosis and treatment of conditions, solely online, may increase liability exposure.
Read TMA's complete Guidelines for Electronic Communications with Patients [ PDF ].
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