Texas, Telemedicine & Access to Care

by Michael Matray, editor of Medical Liability Monitor

Texas faces an access to healthcare crisis. Ranking last nationally in healthcare access, a full 132 of the state’s 254 counties have a shortage of primary care physicians, according to federal government calculations, and 202 counties have a shortage of mental healthcare providers. Medical specialists and pharmacies can be hundreds of miles away.

The hardest hit are rural communities in West Texas and the Panhandle, where 63 counties have no hospital and 16 have only one. More than 80 small Texas community hospitals have shuttered in the last two decades.

Many states with a similarly large number of remote, rural communities—like Alaska, Colorado and Kansas—have embraced telemedicine as the answer to their access to healthcare challenges. Conversely, Texas regulators have spent years trying to rein in the practice of telemedicine, arguing the practice degrades the quality of the physician-patient relationship and threatens patient safety.

In April of 2015, the Texas Medical Board doubled-down on its regulation of telemedicine, approving rule changes that would prohibit the use of “email, electronic text, chat, telephonic evaluation or consultation to establish a physician-patient relationship.” Under the amended rules, physicians would be prohibited from prescribing medications over the telephone to a patient they have never met face-to-face and would be required to conduct an annual, in-person follow-up to maintain the physician-patient relationship. In large part due to these rule changes, Texas earned the distinction of being one of only three states to receive a failing grade in the 2015 State Telemedicine Gaps Analysis published by the American Telemedicine Association (Alabama and Arkansas are the other two states).

In response to last year’s rule changes, Teladoc—the nation’s largest telehealth company—sued the Texas Medical Board, arguing the new rules have nothing to do patient safety, but instead are meant to quash telemedicine’s ability to compete with traditional office-based physicians.

Siding with Teladoc, U.S. District Judge Robert Pitman issued an injunction against the enforcement of the state’s new telemedicine rules in June of 2015, indicating the telemedicine provider would likely succeed in showing that the rule revisions illegally limit competition by requiring “a face-to-face visit before physicians are allowed to prescribe medication to patients.”

At trial, the Texas Medical Board asked the court to throw out Teladoc’s lawsuit, but Judge Pitman rejected the arguments for dismissal based on last year’s U.S. Supreme Court ruling in North Carolina Dental Board v. FTC, where the nation’s high court found that “state licensing boards made up of active members of the professions they regulate, such as practicing dentists and physicians, are not immune from antitrust laws unless they are actively supervised by the state.”

“The medical board claims to be motivated by concerns about patient safety,” said Adam Vandervoort, chief legal officer of Teladoc. “However, they failed to produce evidence during their rulemaking process to support the position that telehealth poses a patient safety risk. Additionally, the board offered no evidence of any harm done by telehealth during the federal court proceeding in opposition to Teladoc’s request for an injunction.”

The Texas Medical Board’s argument that telemedicine is a risk to patient safety does appear to be a red herring, especially when weighed against the dangerous lack of healthcare access much of the state’s population faces.

“The use of [telemedicine] technologies has been shown to increase patient satisfaction while delivering similar quality, and in some cases more efficient care, as in-person care and support,” said Wayne J. Riley, MD, MPH, MBA, MACP, president of the American College of Physicians. “Research shows that telemedicine holds the potential to reduce costs, improve health outcomes and increase access to primary and specialty care.”

Telemedicine advocates argue the practice actually lowers malpractice risks because the majority of medical liability claims in primary care center on communication barriers. Being available to patients by telephone and email 24 hours a day, seven days a week, significantly reduces those communication barriers. Research by the University of Texas Medical Branch Center for Telehealth Research & Policy shows that access to telemedicine reduces nonemergent emergency rooms visits by 50 percent, and telemedicine patients report satisfaction rates well above 90 percent.

“Not only is telehealth the wave of the future, but Texas physicians have been treating patients without a prior in-person visit for decades,” said Jason Gorevic, chief executive officer of Teladoc. “We are happy to be able to continue serving Texas citizens, employers and health plans by enabling them to access high-quality care in a cost-effective manner.

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