Everything’s bigger in Texas, or so the saying goes. However, it’s unlikely that telemedicine will ever get very big in Texas in the wake of a recent ruling by the Texas Medical Board that severely hobbles, if not cripples, the telemedicine movement in the Lone Star State.
On April 10, 2015, the board voted 13-1 to prohibit physicians from using telemedicine to diagnose conditions in or prescribe drugs for patients that the physicians have not first seen in person. The only exception under the ruling would be telemedicine consultations for patients who are already in a health facility, such as a hospital or clinic, and in the presence of another qualified health professional.
Swimming Against the Tide?
Somewhat ironically, the Texas move, widely viewed as an obstacle to the growth of telemedicine, comes at a time when many states are moving quickly to draft regulations and laws designed to facilitate the expansion of telemedicine for both health providers and patients within their jurisdictions. Most states see telemedicine services as a logical way to increase access to health care while at the same time reducing costs.
In yet another bit of irony, the medical board’s press release announcing the new rule is headlined ¨TMB Adopts Rules Expanding Telemedicine Opportunities.¨ Despite the note of hope embodied in the headline, telemedicine industry sources see the board’s latest move as a curtailment of telemedicine opportunities in the state.
In that press release, the medical board says the new rule represents ¨the best balance of convenience and safety by ensuring quality health care for the citizens of Texas.¨ It goes on to note that ¨essentially the only scenario prohibited in Texas is one in which a physician treats an unknown patient using telemedicine, without any objective diagnostic data, and no ability to follow up with the patient.¨
Telemedicine Provider Sues
The Texas Medical Board’s ruling brought a swift response from Dallas-based Teladoc, one of the nation’s oldest and largest telemedicine providers, which filed suit in U.S. District Court in Austin to block the ruling.
Warning that the ruling threatens to ¨bring Teladoc to the brink of bankruptcy,¨ the suit claims that the medical board is trying to protect physicians in Texas from competition. In comments made at the time of the court filing, Jason Gorevic, chief executive officer of Teladoc, alleged that the board ¨acted only when Teladoc consultations became sufficiently numerous to be perceived as a competitive threat to brick-and-mortar physician practices.¨
Working with employer-sponsored health insurance plans, Teladoc covers nearly 11 million people, 2.4 million of whom live in Texas. Although the company acknowledges that it has been operating at a loss, it reports that sales have been increasing rapidly, growing from $6.4 million in 2011 to $44 million in 2014. Of that $44 million in sales, roughly $10 million came from Texas.
Teladoc’s Team of Doctors
In an interview with Abby Goodnough of ¨The New York Times,¨ Gorevic said that Teladoc has a national network of 700 board-certified physicians, all of whom are trained in how to conduct telemedicine consultations. They are also schooled in clinical guidelines that are ¨specific to telemedicine,¨ according to Gorevic.
Physicians on Teladoc’s team are available around the clock, Gorevic said. When a patient requests a consultation, either by telephone or online via the company’s website, a physician licensed to practice in the patient’s state responds, usually within 10 minutes. While Teladoc’s doctors can prescribe a wide array of medications, they never prescribe narcotics, other controlled substances, or lifestyle drugs, such as Viagra, according to Gorevic.
As evidence of the negative impact Teladoc says it is experiencing in the wake of the medical board’s ruling, its lawsuit claims that ¨several of Teladoc’s clients have already opted not to renew their agreements with Teladoc, and others have put negotiations on hold or inquired about early termination. The new rule . . . will not only shut down Teladoc’s operations in Texas, but it will threaten its ability to provide services in other states that welcome telehealth providers.¨
Public Comments Mostly Negative
According to Teladoc’s lawsuit, the Texas Medical Board solicited public comments prior to making its April ruling. Of the 206 comments that were filed, 203 voiced opposition to the proposed new rule, says Teladoc. Of the three comments in favor of the new rule, two came from the Texas Medical Association, the professional organization that represents most of the state’s physicians. In the face of overwhelming opposition to the new rule, the medical board, which has 12 practicing physicians, voted 13-1 to approve the new rule, according to the lawsuit.
In response to Teladoc’s suit, the medical board released a statement saying that it ¨stands by the rules as adopted but cannot comment any further due to ongoing litigation.¨
Teladoc and the medical board have been locked in a running battle since 2011. At that time the TMB threatened to discipline Teladoc doctors who had prescribed drugs to patients who they had never seen in person. Teladoc sued the board, alleging that it had arbitrarily changed its rules without going through the process required by law. In a late 2014 ruling, the Texas Court of Appeals in Austin sided with Teladoc.
Emergency Rule Issued
The medical board fired back by issuing an emergency rule prohibiting the prescription of drugs to patients who doctors had not first seen in person, but Teladoc won a temporary injunction to keep the emergency rule from taking effect. In the meantime, the medical board spent several months following the normal rule-making process that culminated in the April 10 decision.
Although the Texas Medical Board’s ruling is likely to have a chilling effect on the growth of the telemedicine sector in Texas, most observers expect that it will have little impact on telemedicine’s expansion in the rest of the country, according to an article posted at ModernHealthcare.com.
Health Care Consumers Hurt Most
However, critics of the ruling in Texas predict that the state’s health care consumers will be the biggest losers because the rule further limits access to health care in a state that already has significant shortages of providers in many rural areas. Texas also has the one of the nation’s highest rates of uninsured.
Krista Drobac, executive director of the Alliance for Connected Care, told ModernHealthcare.com: ¨We feel like it’s really going to be negative for consumers. At some point there’s going to be a realization that we’re limiting access, and hopefully things change then.¨ Drobac’s organization is a Washington, D.C.-based lobbying group for the telemedicine industry.
Don Amerman is a freelance author who writes extensively about a wide array of nutrition and health-related topics.
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