Telemedicine up for heated debate

The states of Arkansas and Texas rate last and next-to-last in telemedicine practice standards, an issue that has gained prominence in the medical community in recent years, according to a recent report by the American Telemedicine Association.

The Arkansas Board of Medicine has since issued new amendments to its telemedicine regulations, while many residents of neighboring Texas are fighting to loosen its strict limitations as well.

Vinson Knight, JD, of Counsel to Coats Rose law firm, Dallas, Texas, has been following telemedicine closely over the past year and notes that while Texas has a reputation for being one of the most business-friendly states in the country, that does not hold true when it comes to the practice of telemedicine.

“Although most states are making it easier for telemedicine to be provided in their states by loosening regulations, the Texas Medical Board (TMB) adopted regulations in early 2015, which make it harder for telemedicine to be provided in Texas,” he says. “Those regulations prohibit the prescribing of drugs by a physician without an initial in-person visit and require physicians to establish a diagnosis through the use of acceptable medical practices that must be performed as part of a face-to-face or in-person evaluation.”

The Texas Medical Board has stated that these regulations are needed to balance patient safety with the use of telemedicine technology, but the regulations have been challenged in court by Dallas-based Teladoc-a telehealth company that uses telephone and videoconferencing technology to provide on-demand remote medical care. The company believes the regulations limit access to cost-effective care and asserts it has never had a malpractice allegation in its more than 1.5 million consults.

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Teladoc sued the TMB, asserting that the provision that requires a patient to be at the site of a healthcare professional to receive treatment via telemedicine would keep Teladoc from operating in Texas in the manner that it currently does in all the other states. Texas has asked the appeals court to throw out Teladoc’s lawsuit, while federal regulators urged the court to leave it in place.

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Among Teladoc’s arguments is that Texas is suffering from a physician shortage. Thirty-five counties are without a single practicing physician, the company says. making the need to utilize telemedicine vital.

“If a legislative solution is found to the ongoing dispute in Texas and the regulations on telemedicine are eased by the legislature, it would mean greater access to healthcare for many patients,” Knight told Medical Economics. “This would result in patients having more convenient and affordable options for their healthcare needs, especially in rural areas of Texas where there is a shortage of healthcare providers, especially specialists.”

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Earlier this year Arkansas Governor Asa Hutchinson signed legislation that encourages the use of telemedicine and authorizes reimbursement for and regulation of services provided through telemedicine. The new law requires health plans to cover telemedicine-provided physician services and reimburse physicians on the same basis as in-person services.

In July, the Arkansas State Medical Board issued a regulation allowing the use of telemedicine as long as provider-patient relationships were originally established in person (except in emergencies or when providing non-patient-specific information of a generic nature).

At the same time, the board chose not to sign off on a regulation that would allow telemedicine services to be provided from anywhere, requiring instead that they be performed at a medical site such as a hospital or doctor’s office (care for end-stage renal disease is exempted). It sent the proposed rule out for public comment, with a public hearing scheduled for October.

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David Wroten, the Arkansas Medical Society’s executive vice president, says that prior to the board adopting Regulation 2.8, the state was the only one requiring an in-person exam.

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“As telemedicine has become more available and physicians have learned to use it more, we’ve had to change the rules as we’ve gone along,” he says. “The foundation of practicing medicine has always been you don’t prescribe anything-treatments, prescriptions, etc.-that you don’t have a doctor/patient relationship with.”

When the legislature passed Arkansas’ first telemedicine law, which the Arkansas Medical Society sponsored, it gave the medical board authority to expand the definition of what constitutes that relationship.

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“They have opened that door to using a two-way audio/visual exam, provided you can get the same information, at least as good information-as you would have from a physical exam,” Wroten says. “That’s very much in line with what a lot of other states do. Very few allow what Teledoc wants, which is to establish the relationship on the telephone without ever seeing them or laying hands on them.”

The difference from other states is that the statute requires the patient to be at an originating site-defined as “a person being physically located in a healthcare facility or a licensed practitioner’s office.

Wroten feels Arkansas has been unfairly singled out by telemedicine companies and notes that more than a dozen states don’t have a regulation or statute defining the doctor/patient relationship, and it’s allowed in those states only because no official rules have been implemented, a situation that may change over time.

“Telemedicine is a really exciting and rapidly growing area in health care. While we used to fight about ‘what can technology do?’ we’re now really talking about what technology should do within the standard of care,” says Tom Banning, ‎CEO of the Texas Academy of Family Physicians. “It is important to remember telemedicine is a tool, much like a stethoscope, that can help physicians make a diagnosis, provide continuity inside and out of the office which leads to better patient care. I don’t think telemedicine, in and of itself, is going to be a panacea for access to care, though it can improve practice efficiency thereby improving access.”