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Telemedicine set to expand in Texas

Coming to a video screen near you, thanks to a bill signed in May by Greg Abbott.

“This is a huge step forward, a real positive for Texas,” said Dr. Nancy Dickey, executive director of the Rural and Community Health Institute at Texas A&M University. She recently co-authored a report about the health crisis facing rural Texans amid hospital closings and other barriers to access.

Texas was one of the last holdouts in the rapidly evolving world of virtual medicine by requiring an in-person visit between doctor and patient in most cases before allowing diagnosis.

That requirement was at the heart of a bitter, six-year legal battle between the Texas Medical Board, which cited concerns of insufficient patient care, and Teladoc, a national leader in telemedicine.

Teladoc, headquartered in Lewisville, has more than 20 million customers nationwide, including 3 million in Texas. Previously in Texas the company used phones and high-resolution photos for diagnoses, as did other telemedicine companies in the state.

Teladoc has spent about $13 million in legal fees alone in the fight. The new state law presumably renders the fight moot.

The Texas Medical Board, made up of 19 regulators, declined to comment directly on the new law.

“The litigation, although abated, is still pending,” a spokesman said in an emailed statement.

“The need in Texas carried the day,” said Jason Gorevic, CEO of Teladoc. “This paves the way to expand.”

Or at least catch up with the rest of the country.

Texas currently dwells near the bottom of the nation in per-capita access to a physician, ranking usually between 46th and 48th, Dickey said.

In fact, 158 of Texas’ 254 counties do not have a single surgeon. In 185 counties, representing more than 3 million people, there is not a single psychiatrist. Eighty counties have five or less physicians.

While the traditional picture of telemedicine is one of linking a doctor to a patient in some isolated dot on the map, Dickey said it is equally useful for those in small towns who might be 30- to 45-minute drive from a specialist in a larger city.

Those patients, often older and poorer, may not have the time or energy to make a drive on rural roads, said Dickey.

“It is a way to take very specialized medical skills out to towns of 10,000 to 20,000 people,” she said.

See here and here for more on the lawsuit, and here for more on the bill that was signed that basically removed the barriers to telemedicine in Texas. I had been wondering about the status of the litigation since the compromise bill was announced. A little Googling yielded some more specific information than what is in this story.

Teladoc, which is based in Dallas, began operating in the state in 2005. But around 2010 the Texas Medical Board began restricting the practice of telemedicine, especially telemedicine by video, through a prescribing rule revision that required physicians to establish their patient relationship with an in-person visit.

This is where there are two different versions of the story. Teladoc and MDLive, which have operated continuously in Texas with their phone-only services, maintain that medical board rules have always permitted phone calls, even when they restricted the use of video telemedicine. The Medical Board, conversely, has maintained that this is essentially a loophole created by a drafting error and that the intent of the rule is clear: to forbid all telemedicine without an establishing in-person visit.

When Teladoc continued to use telemedicine by phone, the Texas Medical Board sent them a public letter telling asking them to stop, then issued an emergency rule clearing up any ambiguity between phone and video visits. Teladoc sued over the rule, saying that the interpretation of the law in the letter constituted a rule in and of itelf and that the making of that rule didn’t follow the proper procedures for rulemaking.

To make a long story short, that lawsuit beget a much bigger lawsuit in April 2015, one which might have gone all the way up to the Supreme Court. Teladoc sued the medical board under antitrust laws, saying that as a group of practicing physicians with a financial interest in the restriction of telemedicine, the medical board couldn’t pass rules designed to muscle out its competition.

“Unfortunately we had to go to bat for our clients’ right to avail themselves of our services,” Gorevic said. “But it was worth the effort, and we see that as our responsibility as a leader in the space. We never ceased operating in the state and in fact we were reluctant to go to court, but ultimately the reason we went to court was to protect our right to continue to operate and the right of our clients to operate our services. … We stepped up and took a stand and we didn’t see any of our competitors doing the same thing.”

That lawsuit dragged on for two years with a number of twists and turns and cost Teladoc $7 million in a single quarter, according to a public earnings call. Indications were looking positive for the company (the FTC, the federal government’s primary antitrust actor, even filed a friend-of-the-court brief on Teladoc’s behalf), but ultimately the two sides realized they would rather reach a compromise than take the case any further up the ladder. Last fall they requested a stay in the case and a settlement seemed likely to follow.

Gorevic confirmed to MobiHealthNews that if Abbott signs the bill, it will essentially end the long legal battle.

“We expect that the legislation, if signed by the governor, will end the lawsuit,” he said. “It will obviate the need for the lawsuit.”

That story was published May 26, and an update to it at the top confirms the bill’s signing. I didn’t find anything more recent than this in Google News, so I presume the details of the settlement are still being worked out. As I said before, telemedicine isn’t a panacea – it will be of limited use to people who still don’t have insurance, for example – but it’s a good option to have. We’ll see how much it takes root in the state.

A telemedicine breakthrough

This is good to see.

Sen. Charles Schwertner

A years-long fight over the use of telemedicine in Texas appears to have been resolved, with medical and industry groups agreeing to compromise legislation that, if it passes, could benefit patients, especially those in rural areas.

Senate Health and Human Services Committee Chairman Charles Schwertner, a Georgetown Republican and orthopedic surgeon, confirmed the deal on Wednesday and said he will sponsor the legislation to resolve the longstanding feud over rules to allow doctors to see patients electronically.

“I think we will have a bill very soon,” he said, noting there could be “considerable benefits” to patients if the legislation is approved by lawmakers — as well as possible benefits to taxpayers if the electronic doctor visits can help curb spiraling costs for some state-funded healthcare programs.

Ironically, despite the heated controversy over telemedicine for most Texans, the concept of electronic visits was adopted successfully two decades ago in the Texas prison system in a program that is now credited for saving hundreds of millions of dollars.

While the announced agreement clears the way for Schwertner’s bill to move forward in the Legislature to passage, opposition could still materialize that could delay — or perhaps derail — it. Last session, well over a dozen bills were filed to allow telemedicine in Texas, but none became law, officials said.

[…]

While providing few details on the settlement, Schwertner said Wednesday he believes the issues of disagreement have been addressed. Others familiar with the talks agreed.

They said doctors wanted to ensure proper patient care was maintained and that they would receive payment for services provided remotely. Health insurance providers who had supported use of new technologies to improve care and cut costs wanted to ensure proper payments would be permitted. And companies that offer telemedicine services wanted to ensure they could operate without onerous restrictions.

“This is significant, and will be a winner for everyone,” said Nora Belcher, executive director of the Texas e-Healthcare Alliance, a telemedicine trade group. “This is going to get us a fair and open market for telemedicine in Texas.”

Telemedicine isn’t a panacea, but it’s a worthwhile tool to have in the bag, and it should be regulated in a reasonable fashion that allows access while still prioritizing level of care and patient safety. I appreciate the work that Sen. Schwertner has done here to bring the stakeholders together and work something out. I was curious about one thing, because as we know there is an ongoing lawsuit by a telemedicine company called Teladoc against the state of Texas over its current regulations. The story did not mention this litigation, so I sent a query to Sen. Schwertner’s office to ask if one intent of his bill was to resolve that lawsuit. The response I received was “It is our hope that by passing an agreed-to bill between the various stakeholders, this legislation will eliminate much of the legal ambiguity currently surrounding telemedicine and create a clear, fair, and consistent regulatory environment that will allow for the provision of telemedical services while ensuring the safety of Texas patients.” My interpretation of this is that they hope the bill will allow for that dispute to be resolved, but they can’t make it happen on their own. Anyway, this will be worth watching both during the session and (if the bill passes) afterwards.

More on the Texas telemedicine lawsuit

Texas Monthly has a nice overview.

Imagine you’re sick, or you think you might be sick, and you want to talk to a doctor. Instead of waiting a week or two to see your primary care physician, you just open an app on your phone or computer and within minutes you’re video-chatting with a doctor or nurse. Maybe you even have a medical device, like a blood pressure monitor, that connects your computer and transmits images and data to your doctor in real time while you’re talking.

That’s not science fiction. It’s called telemedicine, an $18 billion worldwide industry and one of the fastest-growing sectors in health care. In many ways, telemedicine represents the future of health care, promising to do for medicine what Uber and Lyft have done for transportation. Across the country, the use of telemedicine is expanding as consumers realize how much more convenient it is to talk to a doctor when and where they choose. It’s also a lot cheaper. The average telemedicine visit costs between $40 and $50, compared to the average in-person doctor’s visit, which is about $100 more—not counting the cost of the time and effort it takes to travel to and from a brick-and-mortar doctor’s office.

But here in Texas, where we have an infamous shortage of doctors and nurses, telemedicine has hit a snag. New rules promulgated by the Texas Medical Board last year prompted Dallas-based Teladoc, the largest telemedicine firm in the country, to file a federal antitrust lawsuit against the board. Specifically, the medical board’s new rules (PDF), approved in April 2015 but blocked by a federal judge’s preliminary injunction just days before they were set to take effect, stipulate how physicians in Texas can establish a “doctor-patient relationship” with new patients before engaging in telemedicine. A patient must either visit the doctor in person or meet “face-to-face” over video conference. But the video conference must be at an approved medical site like a hospital, clinic, or a fire station, and there must be a “patient site presenter” on hand, like a nurse or a physician’s assistant. In other words, you can’t just turn on your computer at home, login to a telemedicine app and be connected with a doctor. Put another way, in Texas you have to go to a medical clinic to be seen by a doctor, even if the doctor isn’t there.

This presents a substantial obstacle for Texans who are interested in using telemedicine. Many people, especially younger folks, simply won’t go to a doctor’s office, either because they don’t have what doctors and policymakers call “a medical home,” or because they don’t have health insurance.

So in Texas, which has the highest uninsured rate in the nation, on-demand telemedicine could be a game-changer. It holds the promise that, instead of forgoing medical care, more people might actually seek out a doctor when they’re sick.

All of this is why the antitrust lawsuit Teledoc filed has sparked so much debate—and confusion. Teladoc, which says Texas was already among the most restrictive states in the country for telemedicine, claims the new rules will hamstring telemedicine firms and limit patients’ access to healthcare. The medical board claims just the opposite. It views its new regulations as an expansion of telemedicine, not a restriction of it. Meanwhile, as the case wends its way through federal courts, a consortium of health care and tech groups is calling on the Texas Legislature to step in and settle the matter when lawmakers convene in Austin early next year.

[…]

The Legislature seems at least somewhat aware that it needs to step in. Last session, both the Senate and House issued interim charges to study telemedicine and give recommendations about how to improve it. To date, most of these hearings have steered clear of the lawsuit and spent considerable time hearing testimony about how great telemedicine is in Texas. To be fair, Texas was one of the first states to invest in telemedicine technology in the 1990s, and since then has tried to encourage its use in rural areas where medical specialists are scarce. One pilot program, supported by state funds and run by the Texas Tech University Health Sciences Center in Lubbock, will equip ambulances in rural West Texas with technology that allows first responders to communicate with physicians at regional trauma centers on a secure internet connection and transmit patient data in real-time while en route to a trauma center or an emergency room.

Those are real advances, and will likely save some lives in rural communities. But the big gains from telemedicine will come from hundreds of thousands of consumers using the services for routine care—and doing so on their own initiative from their homes and offices. To make that possible in Texas, lawmakers might need to act. During the 2015 session, Representative Jodie Laubenberg filed several telemedicine bills, including one that would have prevented the medical board from issuing the rule requiring a face-to-face consultation if the physician had never seen the patient. The bill was introduced and referred to the House Public Health Committee, but after the board published its new rules in April and Teladoc sued, Laubenberg, pulled it. “If something’s going to court, we stand back,” she said—a line that’s since been repeated in interim hearings on telemedicine.

But Laubenberg, along with Teladoc and many other Texas-based healthcare firms, thinks the legislature should step in once the court case is settled. They think this is about something much larger than a single antitrust suit. “Over the last five to ten years, telemedicine changed from a promise to a reality,” says Gorevic. “Now we’re starting to see the benefits. Today it’s becoming part of the fabric of the healthcare delivery system.” Just how much a part of the fabric it becomes in Texas depends not only on the Fifth Circuit Court, but how well lawmakers can work with regulators once the dust settles. Right now, the tide seems to be turning in telemedicine’s favor. In September, Robinson, the medical board’s executive director since 2001, announced she’s leaving the board to direct the telemedicine program at University of Texas Medical Branch in Galveston.

For lawmakers like Laubenberg, the issue is about something yet greater than healthcare: the degree to which regulatory boards should make up rules for their industries. “I’ve never been a big fan of agency rulemaking. They tend to go rogue,” she said. “I think the medical board thought they could get ahead of it, but the issue’s too big, and they couldn’t do it.”

See here for the background, and be sure to read the whole thing. It seems likely that Teladoc will prevail in court, though one never knows for sure, and it won’t surprise me if the Lege decides to step in and attempt to settle the matter themselves. There is of course an irony in Jodie Laubenberg being so involved with this, since the omnibus anti-abortion HB2 from 2013 prohibits dispensing abortion-inducing drugs (mifepristone-misoprostol regimen) by anyone other than a physician and requires that the physician dispensing the drug first examine the pregnant woman, which is interpreted to mean “in person”, thus making HB2 itself a telemedicine ban. That provision wasn’t part of the lawsuit that led to much (but not all!) of HB2 being struck down, though it may well come later. Point being, Laubenberg considers regulating doctors to be her job, not the Medical Board’s. We’ll see who gets to make the next move, the Fifth Circuit or the Lege. Texas Association of Business President Bill Hammond, opining in the Chron, has more.

Texas v. the Feds: Telemedicine edition

Here’s a new one.

Teladoc, the Dallas-based company that sued Texas over its telemedicine regulations, has a new ally in the Federal Trade Commission.

In a letter sent to the U.S. 5th Circuit Court late Friday, the federal antitrust agency sided with Teladoc in the company’s legal battle, criticizing the Texas Medical Board for allegedly misinterpreting case law.

The telehealth company sued last year to block board rules that in most cases require face-to-face contact between a patient and a physician before a physician can issue a prescription.

That threatened Teladoc’s business model, which virtually connects Texas patients to remote, Texas-licensed doctors, some of whom are based out-of-state. The company says its physicians consult patients over the phone for routine medical issues, and patients can upload photos or other information describing their symptoms and medical history.

Teladoc filed an antitrust lawsuit against the regulatory Texas Medical Board in federal court last year, alleging that the 19-member board made up mostly of doctors had behaved like a cartel by passing rules intended to limit competition.

The state has asked the appeals court to throw out Teladoc’s lawsuit, and federal regulators on Friday urged the court not to.

The Texas Medical Board failed to show that “any disinterested state official ever substantively reviewed” the telemedicine rules “to determine whether the rules promote a clearly articulated state policy to displace competition rather than the private interests of active market participants,” federal regulators wrote.

I hadn’t noticed this before now, and I don’t know much about this, though on the surface it sounds like Teladoc has a good argument. I was hoping to find an analysis of this via Google, but the best I could do was this by the hacks at the TPPF that was just boilerplate business/free market rah-rah. Here’s an interview with Teladoc’s CEO from January about the lawsuit, if you’re interested. The suit was filed by Teladoc, the AG’s office is defending the Texas Medical Board, and the feds have only just gotten involved, so this isn’t a typical Texas-versus-feds situation. It is a reminder that not all such cases fall into the usual narrative.