bly can and should improve quality of care and should help lower costs.
“I believe the greatest benefit of telemedicine will occur in
chronic disease management. Telemedicine makes it easier for patients to manage their own care under the guidance of a physician,” he said. Telemedicine should be allowed to evolve without being buried under a mountain of regulations, Dr. Chenven says. “The standard of care placed on physicians who practice telemedicine doesn’t change. If a phone conversation with a patient is inadequate, the physician can use good judgment to provide another option for care. We need to trust that physi- cians know what they’re doing in the realm of telemedicine and not create rules that make it more difficult for doctors to treat their patients,” Dr. Chenven said.
Telemedicine in the courts TMB Executive Director Mari Robinson says TMB amended its telemedicine rules in 2010. She says the rules, in part, provide additional safeguards that help ensure virtual physician con- sultations don’t neglect the physical examination. When TMB revised the rules, it received input from several
interested parties, including TMA, the Texas Hospital Associa- tion, the Texas Health and Human Services Commission, the Texas Association of Business, the Texas Public Policy Founda- tion, and companies that provide telemedicine services. Teladoc uses physicians to treat patients over the phone or
via secure online video, although Teladoc does not conduct video consultations in Texas. According to Teladoc’s website,
www.teladoc.com, contracted physicians treat common medi- cal conditions such as sinus problems, respiratory infections, allergies, urinary tract infections, cold and flu symptoms, and other nonemergency illnesses. In Teladoc’s comments on the proposed board rules, the company objected to provisions about distant site providers who perform telemedicine services somewhere other than an established medical site. They require distant site providers to “see the patient one time in a face-to-face visit before pro- viding telemedicine medical care.” (The rules define a patient site presenter or telepresenter as “the individual at the patient site who introduces the patient to the distant site provider for examination, and to whom the distant site provider may del- egate tasks and activities.”) The rules also say distant site providers can see patients
“without an initial face-face to visit, provided the patient has received an in-person evaluation by another physician who has referred the patient for additional care and the referral is documented in the medical record.” Teladoc contends telemedicine physicians can use many other generally accepted means to provide medical services that meet the standard of care. The company’s examples in- cluded use of health records, questions and answers between the patient and physician using interactive media to determine a patient’s medical condition, and lab tests. The medical board disagreed with Teladoc’s comments. In 2011, Nancy Leshikar, TMB general counsel, sent Tela-
doc a letter saying the board does not believe Texas physicians can rely on Teladoc’s statement that it complies with TMB rules if they choose to participate in Teladoc’s program. She added that “any representation you [Teladoc] make regarding Teladoc’s program being in conformance with the TMB’s rules will be directly and firmly refuted by the board.” Teladoc then sued TMB and sought an injunction to prevent
it from enforcing its interpretation of the rules that require a face-to-face meeting before a physician can diagnose or treat a patient.
The company’s lawsuit says Texas-licensed physicians affili- ated with Teladoc have access to a patient’s electronic health record (EHR) and do not use a questionnaire to conduct tele- phone consultations. “The Teladoc physician … evaluates each patient individually based on his or her reported symptoms and the responses to questions asked by the physician dur- ing the consultation,” the lawsuit says. Teladoc says its physi- cians do not prescribe controlled substances, and at the end of telephone consultations, patients can share findings with their primary care physician or they can give Teladoc physicians permission to transmit the information from the consultation to their primary care physician. Teladoc maintains that TMB rules don’t “require an in-per- son physical examination in all circumstances before a physi- cian may prescribe medication to a patient.” It asked Travis County District Judge Amy Clark Meachum to declare the board’s interpretation of the rules invalid and inapplicable to Teladoc. Teladoc said TMB’s rules are “fatal” to its business in Texas.
However, Judge Meachum ruled in favor of TMB last fall,
prompting Teladoc to appeal. Matt Dow, an Austin attorney representing Teladoc, said the company believes the law is on its side and “is confident that it will be successful on appeal.” He said Judge Meachum’s order prohibits TMB from enforcing the regulations during the appeal, thus “Teladoc continues to serve the members of its health plan and employer customers in Texas.” Ms. Robinson couldn’t comment on Teladoc’s business prac- tices pending the appeal. She did, however, stress that physi- cians must establish a relationship with patients before using telemedicine or the telephone.
“If a physician has never seen a patient, has no relationship with a patient, and tries to treat that patient over the phone for the first time, that’s going to be a problem. That physician has never conducted an exam of the patient and has no medi- cal records for the patient. That type of setup isn’t conducive to making an appropriate medical diagnosis and violates the board’s rules,” she said.
Relationship necessary Telemedicine can be especially valuable to patients living in rural and underserved parts of Texas. Regardless of location, Dr. Curran stresses the need for an established patient-doctor relationship before providing care via technology. “I know every single one of my patients I treat using tele- medicine,” he said. “Many of these patients I’ve known for
June 2013 TEXAS MEDICINE 19
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