AcuteCare Telemedicine Blog


Do State Medical Boards Need To Be More Forward-looking When Developing Telemedicine Rules?

Telemedicine has been around for several decades but 2015 is predicted as the year delivering healthcare through telemedicine reaches the tipping point. Patients are becoming more aware of the benefits of telehealth for routine medical services. Dr. James Kiely, Partner, AcuteCare Telemedicine LLC says, “State medical boards are struggling with finding a balance between patients’ demands for new models of care and patient safety as more consumers are embracing the convenience and lower costs of virtual visits and readily seeking routine and minor healthcare services through their smart phones, laptops and pads instead of face-to-face encounters with their doctors.”

The U.S. Congress and individual state legislatures are moving quickly to address payment, safety and quality of service concerns that accompany the new delivery model, which promises to increase access to medical specialist and lower the cost of routine visits to emergency rooms and physicians. The individual state medical boards, the governing bodies of healthcare delivery regulations and practice standards, are a bit more deliberate and inconsistent in setting forth new rules and regulations relative to the practice of telemedicine.

While one universal theme consistently centers on the premise that practicing telemedicine must use the same standard of care as healthcare services provided in person, collective commonality ends there. Although the majority of board efforts include guidelines, exceptions and standards of performance that address the important safety and quality concerns while permitting the practice of telehealth, some individual state board responses differ considerably.

The recent vote to accept proposed rule changes by the Texas Medical Board (TMB) might not be aligned with the majority of state medical boards. The new policy, which does not apply to mental health services, includes language that says physicians cannot prescribe a medication without first establishing a “defined physician-patient relationship.” That includes establishing a diagnosis through an examination performed during a face-to-face encounter.  This may be an effort to limit inappropriate dispensing of medications (e.g. broad spectrum antibiotics and narcotics), but appears to be sufficiently restrictive enough to effectively block the practice of most telehealth within the state.

In response to a legal challenge brought by telemedicine company Teladoc, federal Judge Robert Pitman, for U.S. District Court in Austin, Texas, issued a temporary restraining order and preliminary injunction to keep the TMB rules from going into effect. Teledoc, which operates in 48 states and performed nearly 300,000 virtual patient visits in 2014, challenged the legality of the TMB’s new rules. The American Telemedicine Association (ATA) expressed concern that “any policies addressing telemedicine not be overly prescriptive and inadvertently thwart the benefits of new technologies for improving care, expanding access and reducing costs.”

Given the more cooperative reactions of other state legislatures and medical boards, in regulating virtual healthcare across the country, the strict reaction of the TMB has proponents of telehealth questioning the reasoning behind the Boards restrictive posture. What is it about the delivery model that the Texas Board knows and fears that the rest of the medical community is missing? It is not that telemedicine is untested. In more than a decade of practice it has survived the scrutiny of industry experts and numerous regulatory bodies and has demonstrated its value to improving access and lowering costs while encouraging patients to take a more active personal role in their own medical care. Telemedicine is not a different kind of care, but rather a different method of delivering care.

The actions of the TMB certainly impact the implementation of telehealth programs nationwide, however they do not follow the actions of most state medical boards across the country. Nathaniel Lacktman, a partner at the law firm of Foley & Lardner and the leader of the firm’s telemedicine practice believes that the case could have implications for a number of other state boards as they develop rules surrounding telemedicine. Lacktman stated, “The court’s ruling may be a signal to state medical boards to be forward-looking and open-minded when developing rules, particularly when it comes to regulating new and innovative ways of providing healthcare to patients.”

Telemedicine is becoming a standard of care for specialty practices including neurology, cardiology, and psychiatry, among others. The hope is that each individual state medical board creates legislation supporting a healthcare solution that is designed to balance improved patient outcomes and increased access to quality care.


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