Opponents of a Texas Medical Board (TMB) rule requiring physicians to meet patients in person before treating them by telemedicine are pursuing a legislative compromise, although a federal law may prove a greater barrier for patients seeking telehealth services.
Since 2011, TMB has disputed the right of telehealth providers to treat Texans without an initial in-person visit. The board adopted the latest rule as a tactic in 2015 after a state court found TMB’s previous objections invalid, Becker’s Hospital Review reported in January 2016.
Telehealth providers have challenged the TMB rule in court. Teladoc, a Dallas-based company that establishes doctor-patient relationships by telephone, sued TMB for approving the rule by using emergency protocols Texas law reserves for situations posing “imminent peril to the public health, safety or welfare,” Becker’s reported.
U.S. District Court Judge Robert Pitman stayed the rule’s implementation in May 2015 as the Court considered a related lawsuit, currently before the Fifth Circuit U.S. Court Appeals.
In that lawsuit, Teladoc alleged TMB rules violate antitrust law and “are affirmatively harmful to the public because they reduce access to affordable and convenient treatment,” according to Pitman’s December 2015 denial of TMB’s motion to dismiss.
Looking for Legislative Answer
Telemedicine advocates met in June to develop a proposal for state lawmakers to make telemedicine regulations less restrictive than TMB’s rule.
Tom Banning, director of the Texas Academy of Family Physicians, says telemedicine providers are pressing for state-level legislation supporting technological innovation and high standards of care.
“Our hope and goal is to reduce the regulatory footprint governing telemedicine, hold physicians to the same standard of care, and ensure physicians are paid for providing a service, whether in person or using telemedicine,” Banning said. “I think we—medicine and industry—share a desire to work through the policy issues and arrive at an agreed-to piece of legislation.”
Keeping Up with Change
Nora Belcher, director of the Texas E-health Alliance, says lawmakers should make sure telemedicine regulations respond to advances in technology and patient care.
“We are at an inflection point where the technology is really mature and accepted and payment models are evolving,” Belcher said. “What we need is a regulatory structure that reflects the changes in the technology and payment environment, and I think there’s very broad-based agreement on that.”
Telemedicine offers patients and the state unprecedented opportunities to reduce health care spending, Belcher says.
“Historically, there were challenges whenever you increased access to care via telemedicine, where it was seen as just an additional cost,” Belcher said. “Now, we can look at savings from preventing hospital admissions or [emergency room] visits, or measuring things in our Medicaid program, like avoided transportation costs.”
Federal Regulations More Restrictive
One law especially restrictive of Texas telemedicine was passed by Congress, not state lawmakers, Belcher says.
“The biggest barrier is actually the federal Ryan Haight Act, which requires an in-person visit with a physician in almost all circumstances before a controlled substance can be prescribed,” Belcher said. “This was intended to curb painkiller abuse but also now includes ADHD medications, since they were reclassified as controlled substances. It’s more restrictive than our board rule and has created a real barrier to access.”
The Ryan Haight Online Pharmacy Consumer Protection Act was passed in 2008. Since then, telemedicine providers have persevered through federal impediments to deliver services to mental health patients in remote areas, Belcher says.
“Despite [the Ryan Haight Act], we have entire parts of Texas where [in-person] access to mental health services is very limited, and telemedicine is being used very successfully in those areas for treatment and triage of patients,” Belcher said.
David Grandouiller ([email protected]) writes from Cedarville, Ohio.
Order Denying Dismissal in Telemedicine Antitrust Lawsuit, Teladoc v. Texas Medical Board, U.S. District Court, Western District of Texas, December 14, 2015: https://heartland.org/publications-resources/publications/order-denying-dismissal-in-telemedicine-antitrust-lawsuit-teladoc-v-texas-medical-board
Latoya Thomas and Gary Capistrant, State Telemedicine Gaps Analysis: Coverage and Reimbursement, American Telemedicine Association, January 2016: https://heartland.org/publications-resources/publications/state-telemedicine-gaps-analysis-coverage-and-reimbursement
Michael Hamilton, “‘Mental Illness Feels Like’ States Ought to Remove Barriers to Telehealth,” Consumer Power Report, The Heartland Institute, June 2, 2016: https://heartland.org/news-opinion/news/mental-illness-feels-like-states-ought-to-remove-barriers-to-telehealth
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