Update: The board approved the amendments in a 13-1 vote, which you can read about here. Below is the original story, which includes additional background about what led up to the vote.
The Texas Medical Board is set to decide by Friday whether to adopt amendments to its guidelines that will limit the scope of telemedicine, decisions that industry proponents say could gut the practice. The decision marks the end of a nearly four year standoff between the board, which maintains that the practice must be reined in to ensure patient safety, and Dallas-based Teladoc, which is the largest provider of such services in America and defends its safeguards as more than sufficient.
The back and forth began in 2011 over a three-word phrase: “face-to-face.” The medical board is concerned that telemedicine degrades the quality of the physician patient relationship. Teladoc, for instance, employs physicians who are semi-retired or taking time off from their practice. They’re assigned at random and do not have a prior relationship with the person their seeing.
The service is not meant to replace the primary care physician—Teladoc bars its participating physicians from prescribing controlled substances or lifestyle drugs, and is meant to serve as a substitute at times when the patient cannot see his or her physician. Jason Gorevic, the company’s CEO, says 47 percent of its visits occurred on nights, weekends, and holidays.
“We are focused on maintaining the primary care relationship; we think the primary care relationship is critical,” he said. “All of our communications to consumers say, the first thing you should do when you’re sick is call your primary care physician. We are here when you can’t get to your primary care physician.”
The board wants to mandate that a physician and a patient have a defined relationship before providing said patient with telemedicine services. That defined relationship means that the physician must first be physically in the room. Then they can provide telehealth services in which they diagnose and prescribe medicine to treat that patient’s condition. Otherwhise, the new guidelines would require at least a nurse practitioner or physician assistant (a “mid-level,” in board parlance) be present if a different doctor is providing telemedicine services.
“As I’m reading it, the board is not comfortable with a substitute at this point for the old fashioned physical exam,” says Ryan Wozny, a partner at Dallas-based health firm Chamblee, Ryan, Kershaw, & Anderson, an attorney who frequently takes cases challenging medical board rulings. “It’s not going to make things as hands-free as the telemedicine providers want it to be.”
Telemedicine is a rapidly growing sub-industry inside healthcare that allows patients to reach a U.S. board-certified doctor or a licensed pediatrician from wherever they have a phone. Sometimes the consultation can occur during a call, and sometimes the doctor will require the patient to send a photo of their ailment or log into a HIPAA-compliant video streaming service. Teladoc’s entire operation is managed through an in-house platform that adheres to privacy laws.
The practice is also growing fast. Nationwide, the company logged a hair short of 300,000 patient consults in 2014, up from 156,00 in 2013, and 66,000 the year prior. Employers and health plans sign up for the service, which is then provided to the plan holder. It is a tool, Gorevic says, merely available to treat uncomplicated diseases when a patient’s typical provider can’t be reached. The patients can be traveling for work or it can be the middle of the night. It can cost up to $40, although the health plans often pick up a share of each patient visit.
The company has a national membership of about 700 board certified physicians, 90 of whom are in Texas. Teladoc mandates that its physicians be licensed in the state where the patient is located.
“We bring care to the patient rather than making the patient go to get care, and that’s particularly helpful for the 200 counties in Texas that are medically underserved, for the 16 counties that only have one physician, and 27 counties that don’t have any physicians at all,” Gorevic says. “For the mom who has a sick child and has to get to work or in the middle of the night and doesn’t have access to care, we give them an alternative to running to the emergency room.”
The legal wrangling in the Lone Star State began in June 2011 when the board sent a letter to Teladoc threatening to discipline its doctors for prescribing medicine without physically being in the room with the patient. The company promptly sued that July, arguing that the board’s letter constituted a change in its rules. And in order to change a rule, the board must draft the rule changes and accept input from a “wide variety of stakeholders.” The rules are then published in the Texas Register before holding a two-to-three week period of public comment. The board then decides whether to adopt the changes during a scheduled meeting.
So: In December of last year, now three years after Teladoc sued, the Texas Court of Appeals ruled that the amendment was invalid, saying the letter did constitute a rule change. The board waited a whole month to respond, releasing an emergency rule that banned the practice of telemedicine by mandating a doctor be physically present when seeing a patient. Teladoc sued again in Travis County and was awarded a temporary injunction; the state was unable to prove that telemedicine was putting patient health in immediate jeopardy and worthy of an emergency ban.
Out of options, the board announced in February that it would follow the formal rule-making process. Which brings us to the two-day April meeting of the Texas Medical Board.
The proposed rules in the Texas Register now require a “defined” physician-patient relationship that requires a physical examination of the patient to be performed “as part of a face-to-face or in-person evaluation,” held to the same standards of “acceptable medical practices.” It does allow an exception for behavioral health (except in emergencies), an area that Teladoc recently added to its provided services.
And about that “defined” relationship: “An online questionnaire or questions and answers exchanged through email, electronic text, or chat or telephonic evaluation of or consultation with a patient are inadequate to established a defined physician-patient relationship.”
The Texas Medical Association, which counts more than 48,000 state physicians among its members, says it’s “deeply concerned” that “certain telephonic services companies” won’t follow up with the patient or promote coordinated patient care. Dr. Doug Curran, a family practice physician at Lakeland Medical Associates in the East Texas town of Athens, recalled a patient who used a telemedicine service on a Friday night and was prescribed antibiotics for what the doctor felt was a sinus infection.
“She came to my office Monday morning shaking with chills. She had pneumonia, and had to spend a week in the hospital,” he said. “You know, I’ve been doing this over 30 years and I don’t feel comfortable—even with my own patients—seeing them over the phone if I can’t see them the next day.”
Dr. Henry DePhillips, Teladoc’s Chief Medical Officer, says patients are told to seek care immediately if symptoms persist. He cites a RAND Corp. study published in Health Affairs that found 94 percent of the more than 3,000 telemedicine patients it reviewed did not need additional care. The research also found the service boosted access to acute medical services. Another study found that it could reduce hospitalizations and save Medicare money.
But the author of the first study, Lori Uscher-Pines, does note, “little is known about how these services are being used and whether they provide good quality care.”
“As CMO at Teladoc, I am ultimately responsible that the highest quality of care is given during the encounter between the physician and the patient in the Teladoc program,” DePhillips says. “We have done, to date, over 700,000 medical consultations nationwide and not once have we had a medical liability claim even filed with our carrier, and we have carried the liability insurance since day one.”
But back to the medical board—it meets Thursday and Friday, at which point it will determine whether to adopt the new standards. Telehealth has some loud voices in its corner, including employers like Domino’s and Pepsi-Cola as well as the Texas Association of Business. Wozny, the attorney, says it doesn’t look like the board is ready to give its full support to the telemedicine companies, however. But that doesn’t mean it won’t eventually: “In the future, maybe the board takes a look again, says, ‘we made these changes, the sky hasn’t started falling yet, maybe we can go another step.’”