New State Telemedicine Laws Show Provider Hurdles Remain

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By Matthew Loughran

Telemedicine laws recently enacted in Texas and Oklahoma reflect a wider acceptance of the practice but also serve as a reminder that health-care providers and regulators still face significant hurdles in adapting to new remote treatment technologies.

The Texas law, passed by the state legislature May 12, permits telemedicine providers to establish a patient-provider relationship without an in-person consultation needed. The Oklahoma law, passed 8 days earlier, does the same. Both laws also provide definitions for telemedicine and describe specific delivery methods that will be available for use by telemedicine providers.

Perhaps most importantly, these laws continue a pattern in which each new state telemedicine law uses different definitions for what constitutes telemedicine and imposes disparate restrictions on what may or may not be done by telemedicine providers. This lack of uniformity stands as an ongoing challenge for providers and their counsel and poses an ongoing impediment to more widespread adoption, health-care lawyers told Bloomberg BNA.

“These state laws are continue the trend for loosening restrictions on telemedicine,” Emily Wein, a health-law attorney with Baker, Donelson, Bearman, Caldwell, & Berkowitz PC in Baltimore, told Bloomberg BNA. Wein is a member of a Bloomberg BNA advisory board.

Loosening of Restrictions

“These new laws don’t address a particularly unique set of circumstances, but it is notable that they were adopted by states that have been holdouts for so long, especially given the amount of controversy surrounding prior actions by the boards in both states,” Rene Quashie, a health-care attorney with Cozen O’Connor in Washington, told Bloomberg BNA. “What you see is these states falling into line with what a vast majority of states already permit,” he said.

Wein agreed that the Texas and Oklahoma laws reflect a growing trend of states concluding that telemedicine can provide cost savings and improve patient outcomes. “Every month we have another state that is one way or another expanding the ability to use telemedicine,” she said. “And the states that are doing this are putting themselves in a very good situation, but it has to sync with the population that you are trying to reach,” she said.

“But there are still some more practical difficulties on issues of internet connectivity, and broadband access,” she added.

Wein pointed out that states with large rural populations such as Oklahoma and Texas have additional hurdles to overcome even after passing laws that loosen telemedicine restrictions. “To really make it a boon to show cost savings and improved patient outcomes you have got to reach the rural populations that don’t have the education and don’t have the internet bandwidth to be among the first adopters of the technology,” she said.

Place for State Medical Board

The Texas law follows a lengthy court battle between the state’s medical board and Teladoc Inc., one of the largest telemedicine providers in the country. At the heart of that dispute were rules imposed by the medical board that prohibited Teladoc physicians from establishing patient relationships without having an in-patient visit.

Teladoc brought a private antitrust action in federal court, claiming the medical board was actively attempting to keep it and other telemedicine providers from gaining a foothold in Texas. The case is in settlement discussions after the medical board lost an attempt to have its actions declared immune from federal antitrust laws. Additionally, the case drew the attention of the Federal Trade Commission, which opened an investigation into whether the state board’s rules were squelching competition.

After Texas passed its law, the FTC dropped its investigation, saying the state’s new law addressed the competition concerns generated by earlier medical board actions.

“The Texas litigation is really interesting,” Nadia de la Houssaye, an attorney with Jones Walker LLP in Lafayette, La., told Bloomberg BNA. “The FTC made it very clear that they were in favor of Teladoc bringing this action not only as a way to clarify the medical board’s function but also to advocate for the consumer,” she said.

De la Houssaye said the efforts of various stakeholders in crafting the Texas law in response to the Teladoc case were a positive development. “It shows the power of creating a state-based coalition, bringing in the stakeholders, and coming to a conclusion,” she said.

“The only downside, is that now we don’t have any legal precedents in terms of what a state medical board can and cannot do,” de la Houssaye said. “It would’ve helped other states from a legal perspective if there had been some decision on the merits of the case,” she said.

But Wein said the case and the FTC’s investigation could still provide states with a guide for reining in medical boards. “This definitely is almost a road map for states that think their medical boards are stifling the expansion of telemedicine for competition reasons,” she said. “There may be challenges in some other states that are waiting in the wings, knowing the FTC’s interest is a huge card to play,” she said Individuals who are concerned could draw the attention of the FTC to their state if needed, she added.

The Texas statute explicitly eliminates the state medical board’s authority to require a face-to-face meeting by a physician even after the initial consultation. However, it does leave intact the board’s authority to enact rules to “ensure that patients using telemedicine medical services receive appropriate, quality care.”

Allison Wils, a health policy advisor from Cozen O’Connor Public Strategies in Washington who has worked with state regulatory boards in the past, said that is where most of the role for state medical boards will be in telemedicine.

She said that what these medical boards do is very important. “The vast majority of them are composed of volunteer doctors, and you need that expertise to protect the patients in the state,” she told Bloomberg BNA. “The boards start out from a concerned, honest place, and they just need to have an understanding that innovation is a good thing,” she said.

Lack of Uniformity

Lack of uniformity in the way the two laws address important issues seems to reflect the national regulatory landscape in the telemedicine space, one that has in many ways made it harder for telemedicine to gain a foothold more quickly, attorneys told Bloomberg BNA.

For example, the language the Texas and Oklahoma statutes use to define telemedicine differs significantly.

The Texas law focuses on the physical distance between a health-care provider and a patient as well as the use of “telecommunications or information technology” to provide medical services “within the scope of the physician’s or health professional’s license.” However, the definition makes no mention of specific methods of delivery or additional records requirements.

The Oklahoma law, meanwhile, defines telemedicine by specifically identifying “two-way, real-time interactive communication, not to exclude store and forward technologies,” as the approved delivery method. It also requires a doctor to have access to, and to have reviewed, a patient’s “relevant clinical information prior to the telemedicine visit.”

Store and forward technologies provide telemedicine consultation by allowing physicians and patients to transfer records and video clips back and forth to each other over a secure email communication channel. It permits the patient and physician to carry on the telemedicine consultation at their own convenience without requiring real time audio and video connection.

This difference is not uncommon when comparing multiple states’ laws, attorneys told Bloomberg BNA

“Although there is relative consistency and homogeneity in how state laws define the ‘practice of medicine,’ state law definitions of telemedicine are varied, as are state telemedicine practice standards,” Nathaniel Lacktman, a health-care attorney who chairs the national Telemedicine Industry Team at Foley & Lardner LLP in Tampa, Fla., told Bloomberg BNA. “Telemedicine providers would benefit if state legislatures and medical boards used consistent definitions, such as the model language contained in the Federation of State Medical Boards 2014 guidance,” he said, referring to the Model Policy for the Appropriate Use of Telemedicine Technologies, which the FSMB adopted in April 2014.

“You have to look at this as a spectrum,” Wils said. “There are bookends on either end of what is permitted and what is restricted and some of the more conservative ideology that would prevent telemedicine from being used has been moved in a little bit, which means the spectrum is not as broad, but it is still a spectrum.”

Quashie agreed the differing definitions are likely here to stay. “Because it is a province of state law, I don’t think that we will get to a place where there is one standard,” he said. “But there is general agreement, at least at the margins, and most states are approaching it from the same general perspective.”

However, those differences mean telemedicine providers need to be careful when practicing in a state and not assume that all of their practices in one state qualify in another. “Some restrictions can be hidden in other sections of the rules,” de la Houssaye said. “It is very important for providers to read the state medical board’s practice requirements because not everything is defined in the provision regarding what constitutes a physician-patient relationship,” she warned.

“There may be other areas within the medical board’s practice requirements that limit what a provider can do via telemedicine,” de la Houssaye said.

Restrictions on Delivery Methods

One aspect of both the Texas and Oklahoma laws the attorneys pointed to as raising issues of concern was the language with which each state legislature identified the telemedicine delivery methods permitted.

Both statutes require use of audiovisual connection, either in real time, through a synchronous connection or through an asynchronous connection by store and forward technology.

“There is a danger, when you are at the intersection of health and technology, that certain definitions have a way of becoming moot very quickly,” Quashie said. “Ultimately you would prefer statutes and regulations to be technology neutral while providing enough clarity within the confines of the law,” he added.

One aspect on which both the Texas and the Oklahoma laws agree is that telemedicine doesn’t include audio-only interactions. “But the “no audio-only” concept is betrayed when we look at how medicine has been practiced for decades,” Lacktman said. “Patients could telephone their treating doctor if they had a medical event during after hours, and the doctor could treat or prescribe during that call. Although that is in the context of a pre-existing doctor-patient relationship, is it clinically any different from an ‘audio-only’ telemedicine interaction?” he asked.

The attorneys said most of the modality questions should be handled at the regulatory level or just assumed into the state’s established standard of care for telemedicine. “New regulatory regimes need to balance patient safety concerns with the freedoms that health-care entities need to innovate,” Quashie said.

“There is an evolution at play for telemedicine regulation,” Lacktman said. “When we started, most states had no telemedicine rules, and providers asked for laws that affirmatively stated ‘yes, you may use telemedicine’,” he said. “A decade later, providers are asking to make those same rules less onerous and more flexible,” he added, pointing out that telemedicine advocates have at times lobbied against certain state telemedicine laws.

“This back-and-forth may be frustrating to some, but this change is to be expected,” Lacktman said. “Laws and regulations are often a bridge from where our society is to where we want it to be.”

To contact the reporter on this story: Matthew Loughran in Washington at mloughran@bna.com

To contact the editor responsible for this story: Peyton M. Sturges at PSturges@bna.com

For More Information

The Texas law is at http://src.bna.com/rja.The Oklahoma law is at http://src.bna.com/rjb.

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