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    Even as the legal battle between the Texas State Medical Board and Teladoc soldiers on, many of the involved parties in the state appear interested in putting the conflict behind them and moving on. 

    The Texas Tribune is reporting that lobbyists for groups affiliated with both telemedicine companies and physician organizations recently met in a closed-door session to discuss "modernizing our telemedicine statutes and reducing the regulatory footprint governing the provision of telemedicine services,” according to an email that went out to participants. The Tribune says that representatives for the Texas Academy of Family Physicians, the Texas Medical Association, and the Texas e-Health Alliance were all in attendance, as was a representative for Teladoc.

    The conflict between the Texas State Medical Board and Teledoc, which echoes a larger conflict between physician groups and telemedicine stakeholders in Texas, is over whether telemedicine should be permitted without patients and their doctors first meeting in person. Telemedicine groups argue that such a meeting is unnecessary and that requiring it hampers their ability to run a viable business, while physician groups say it's key to responsible care.

    The groups told the Tribune that negotiations are still underway, but that they hope to reach a compromise by the end of the summer. Elsewhere Indiana recently passed its own telemedicine legislation, which doesn't require in-person meetings before telemedicine visits, but does require doctors and patients who don't have a prior relationship to establish one. It leaves an in-person meeting as one of several options for doing so.

    Teladoc declined to comment to the Tribune. However its competitor American Well is also following the negotiations and issued its own statement:

    “We are encouraged by the progress in Texas, which is the result of ongoing conversations between physician leadership and telehealth stakeholders over recent months," Kofi Jones, VP of Government Affairs for American Well, said. "This is the right way to move forward – acknowledge the existing environment, identify key issues, and map a path forward in collaboration. Ultimately, we are highly optimistic that this process will result in expanded opportunities for telehealth that will positively serve both providers and patients in the state of Texas.”

    The Texas State Medical Board vs Teladoc case is still ongoing. In December, Judge Robert Pitman denied the board’s motion to dismiss the suit, responding to each of three claims that the suit was invalid, originally made in September. In the process, he settled the issue of “active supervision”, a highly salient point in the case. This initial victory bodes well for Teladoc, though it doesn’t seal the deal by any means. Pitman ruled that the Texas Medical Board isn’t immune to anti-trust action, but will still have to rule on whether the board has, in fact, engaged in anti-competitive activity.

    Author: 
    Jonah Comstock
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    When it comes to telemedicine, Texas is behind the national curve. While most states have passed legislation that greenlights various telemedicine services, Texas (along with Arkansas) still lag on the initial foray into telehealth services, struggling, for example, to define whether a video visit or a phone call can appropriately establish a patient-physician relationship.
     
    Which is why the Texas eHealth Alliance, a group of stakeholders ranging from Texas Hospital Association and University of Texas to telehealth companies like American Well, Teladoc and Cisco Systems recently drafted a bill they hope will get them up to national par. Submitted Wednesday to the Texas legislature, the bill comes at a time when telehealth in the state is a thorny issue. The Texas Medical Board is currently embroiled in a legal battle with Teladoc over what constitutes the appropriate establishment of a patient-doctor relationship.
     
    Currently, the state’s telemedicine law promulgates the specific way a relationship must be established. If the patient is not at an established medical site, like a hospital or clinic, they cannot enter into a telemedicine relationship with an doctor.
     
    "We're hoping that with this bill, we can once and for all address this. We're highly optimistic that the 2017 legislative session is the one where we are going to solve the telehealth issue," American Well's VP of Government Affairs Kofi Jones told MobiHealthNews in an interview.

    “In the meantime, basically every other state in the union allows what we would call direct to consumer telehealth,” she said.
     
    The next Texas legislative session is not until January. The Texas eHealth Alliance submitted the bill now for public comment and hopes they can come to a consensus bill.
     
    “We see this as a way to simplify the regulatory footprint and even out the market for everyone who wants to do telemedicine,” Texas eHealth Alliance executive director Nora Belcher told MobiHealthNews. “We used to fight over what was possible, and now it’s about what’s appropriate.”
     
    Belcher said the Alliance wants to be transparent about everything by speaking openly and sharing drafts of the bill. 
     
    “This is absolutely the best opportunity to move telemedicine forward in a way that works for everyone,” Belcher said. "We don't want this to be a take it or leave it thing; we are open to discussion."

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    Heather Mack
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    The Texas Association of Business, a lobbying group that represents the state’s employers, is joining the pro-telemedicine camp: the group just released two surveys (one of its members, one of the voting public) totaling more than 750 people that serve as a support to legislation that would allow telemedicine to operate more freely in the state.

    “Texas health care consumers are calling for new ways to receive care,” the group wrote on their website. “They want immediate access without time-consuming waits. They want providers to use technology to streamline services. They want care at a better price.”

    The group surveyed 600 registered Texas voters to gauge their opinion of telemedicine. Along with general age, political affiliation, income and family size, questions included whether they would like telemedicine as part of their health benefits, how often they used their healthcare services, and how much time and money they used on healthcare.

    A majority – 70 percent – of survey respondents favor the use of telemedicine to diagnose common medical conditions, such as a sinus infection or rash. At the same time, half of respondents answered that access to healthcare providers has gotten more difficult, and 25 percent of them have used an emergency room to treat common medical conditions. Just under a quarter of rural Texans have to drive 30 minutes or more to get to the doctor or wait at least two weeks to see their doctor. 

    The Texas Medical Board has a provision requiring an in-person relationship to be established before a physician can diagnose and prescribe medications to treat such ailments as those mentioned in the survey. Historically, Texas hasn’t been exactly hospitable to telemedicine. Along with Arkansas, it’s the only state in the country that doesn’t have strong telemedicine operations because there are still issues with defining what establishes an appropriate doctor-patient relationship. Teladoc is still tied up in appeals court over an antitrust lawsuit it filed against the Texas Medical Board last year.

    The Texas Association of Business also surveyed 159 of its members. This group ranged from those who had five employees or fewer to more than 500. Nearly 80 percent of respondents favor the use of telemedicine, but 70 percent believe that access to health care providers has gotten more difficult. Even with these opinions, just 18 percent of companies offer telemedicine as part of its employee health benefits package, and all of those intend to continue offering it. A quarter of respondents have plans to expand the benefit.

    Most of the respondents who are in favor of telemedicine are so because of the cost savings to the company and employees, as well as the time- and travel-saving benefits.

    “Innovation is the key to solving Texas’ healthcare gaps,” the group wrote. “Telemedicine has the potential to transform traditional healthcare delivery models.”
     
    The Texas Association of Business isn’t the only group looking to encourage the lifting of regulations on telemedicine in the state. The Texas eHealth Alliance – a group of stakeholders ranging from the Texas Hospital Association and the University of Texas to telehealth companies like American Well, Teladoc and Cisco Systems – drafted a bill to the Texas legislature in July. The group is currently circulating its most updated version, and the next legislative session will be in January. 
     

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    Heather Mack
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    Telemedicine implementation around the country is improving overall, although some states are bottoming out on their progress, according to the latest state-by-state assessment by the American Telemedicine Association that gives letter grades on their policies around practice standards and payment policies.

    The ATA’s report is an update to two state policy reports that identify gaps in coverage, reimbursement, physician practice standards and licensure.

    Using data categorized into 13 indicators related to coverage and reimbursement, the report identified “a mix of strides and stagnation in state-based policy despite decades of evidence-based research highlighting positive clinical outcomes and increasing telemedicine utilization,” the authors wrote.

    “There is promising news overall for patients, providers, and businesses using telemedicine and other digital health platforms,” Latoya Thomas, director of the ATA’s State Policy Resource Center said in a statement. “These reports show that insurers, state lawmakers and Medicaid agencies see telemedicine, and other digital health platforms, as affordable and convenient solutions to bridge the provider shortage gap and enhance access to quality health care services.”

    Many states were actually bumped up a full letter grade, and seven of them adopted policies that improved coverage and reimbursement of telemedicine provided services since last year’s report (Connecticut and Rhode Island even made the massive leap from “F” to “B”). Since the ATA first started grading the states in 2014, ten states have enacted telemedicine parity laws with private insurers.

    Overall, the country fared pretty well – as of 2017, all states allow coverage of telemedicine to some degree. Additionally, for the first time since the ATA has been conducting the Coverage and Reimbursement report, all Medicaid agencies cover some form of telemedicine. Twenty-six states have some type of coverage for telehealth under state employee health plans, and more states are passing legislation or seeking federal waivers to cover remote patient monitoring (15 cover services when using store-and-forward technology).

    But not everyone is moving ahead. While the number of states with telemedicine parity laws has doubled in the past five years, some states – Delaware, Washington, D.C. and South Carolina – were actually downgraded, with the latter owing to the expiration of a remote patient-monitoring waiver for the decline. Arkansas still maintains a failing grade because it is still the only state that requires an in-person visit in its parity law, although that state has recently taken action towards loosening restrictions around telemedicine. 

    “Patients and health care providers are benefitting from policy improvements to existing parity laws, expanded service coverage, and removed statutory and regulatory barriers,” the report states. “While there are some states with exemplary telemedicine policies, lack of enforcement and general awareness have led to a lag in provider participation. Ultimately these pioneering telemedicine reforms have trouble reaching their true potential.”

    Looking at specialty services, like mental health and rehabilitation, more states are rising up to meet the need: Fifteen states rank high for coverage of mental and behavioral health, although others, like the lowest-ranking New York, have enacted regulations that restrict the service.
     
    Focusing on physician practice standards and licensure, the report found medical boards have moved towards a trend of developing different regulations or guidance for medical practice via telemedicine. They are also removing telepresenter requirements, but becoming more prescriptive in the types of modalities allowed.

    “As a result of changing guidance and regulation for telemedicine when compared to in-person practice, more states have improved a letter grade since the report in 2016,” the report states.

    In a comparison of the numerous state laws and variations in medical board standards across the country, 21 states averaged the “highest composite grade,” showing a general embrace of telemedicine. Arkansas made the most significant improvement by finally adopting rules allowing license physicians to establish a relationship with a patient via interactive audio-video meetings. Two other states, Florida and Louisiana, earned higher scores, and Michigan moved down a grade.

    A majority of states and D.C. are more in middle of the road for improvements though, and Texas still averages the lowest composite score, “suggesting many barriers for telemedicine advancement.”

    But, Texas must be given credit where it is due: this week, the longstanding telemedicine saga appeared to finally be winding down as the state medical association and industry members like Teladoc reported that they have reached an agreement, the Houston Chronicle reported.

    Republican Charles Schwertner, Chairman of the Texas Senate Health and Human Services Committee, will sponsor the legislation that will serve as a compromise on rules.

    The bill, which is expected to come out later this month, would allow doctors and patients to establish a first-time relations with audio visits, so long has the doctor has medical records or images to buttress their assessment to form a diagnosis or treatment.

    Teladoc, which offers remote medical visits, sued the Texas Medical Board in state court way back in April 2015, alleging that because the board was made up of practicing doctors with a financial interest in squelching telemedicine, the board's passing of anti-telemedicine legislation constituted a violation of antitrust laws. But the medical board filed a motion asking for the suit to be dismissed on the grounds that there is, in fact, state supervision of the medical board which would make it a state agency under law and therefore immune to suit. When the judge denied the motion, the medical board appealed to the Fifth Circuit court. In October, the Texas Medical Board dropped its appeal in its case against Teladoc.

    While the compromise represents progress, it's not over til the legislation is actually passed, but pro-telemedicine groups are optimistic.

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

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    Heather Mack
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    The latest legislative effort to establish telemedicine guidelines in Texas may finally be what everyone has been waiting for. Senator Charles Schwertner submitted a bill this week created out of months of negotiations between various medical boards, regulatory agencies and industry groups, and it contains a compromise that may finally bring an end to the longtime telemedicine standoff in the Lone Star State.

    Senate Bill 1107puts forth how clinicians can use telehealth platforms to establish doctor-patient relationships, notably eliminating previous requirements that the two must meet in person before telemedicine can be used for certain services. The bill allows doctors and patients to establish a first-time relationship with audio visits, so long has the doctor has medical records or images to buttress their assessment to form a diagnosis or treatment.

    The sparring group of medical and industry leaders first announced they had come to this compromise last month, around the same time the American Telemedicine Association put out their state-by-state assessment of telemedicine practices that pegged Texas as the state with the lowest composite score.

    The bill is welcome news to telemedicine provider Teladoc, which has been embroiled in legal battles with the Texas Medical Board. Teladoc, which offers remote medical visits, sued the Texas Medical Board in state court way back in April 2015, alleging that because the board was made up of practicing doctors with a financial interest in squelching telemedicine, the board's passing of anti-telemedicine legislation constituted a violation of antitrust laws. But the medical board filed a motion asking for the suit to be dismissed on the grounds that there is, in fact, state supervision of the medical board which would make it a state agency under law and therefore immune to suit. When the judge denied the motion, the medical board appealed to the Fifth Circuit court. In October, the Texas Medical Board dropped its appeal in its case against Teladoc, though the original suit is still ongoing.

    On their quarterly earnings call this week, Teladoc President and CEO Jason Gorevic said they were “encouraged” by the bill, and Chief Operating and Financial Officer Mark Hirschhorn noted the obvious financial benefit the legislation presents.

    “You know that over the past almost two years now, we have had, on average, over $1 million of our legal costs principally all related to Texas,” Hirschhorn said on the call. “So if those costs were going to be reduced significantly as a result of a legislative action, we would have that pick up in Q3 and Q4.”

    With that bit of liberation came some new restrictions, however. Schwertner’s bill explicitly bans the use of telemedicine to prescribe abortion-inducing medication. If this passes without any objection, Texas would be the 20th state with such a ban. However, that may set up parties in the state for a whole new slew of telemedicine lawsuits. Recently, Utah stripped the limitation from their telemedicine bills, and Planned Parenthood settled a lawsuit with Idaho legislators over a similar restriction in that state. The reproductive health nonprofit also won a similar suit in Iowa in 2015

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    Heather Mack
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    Federal standards for telemedicine reimbursement are becoming more of a reality. The newly reintroduced Senate Bill 870, called Creating High Quality Results and Outcomes Necessary to Improve Chronic Care Act of 2017 (also referred to as CHRONIC), aims to hone in on Medicare payment reform in order to expand telemedicine services for chronic disease management and at-home care coordination.

    Along with expanding telemedicine coverage under Medicare Advantage Plan B in 2020 and giving Accountable Care Organizations more freedom to use telemedicine, key provisions in the CHRONIC bill extend the Centers for Medicare and Medicaid Services’ home-based primary care teams for people with multiple chronic conditions. The bill would extend this “Independence at Home” demonstration to two years and increase the maximum allowable number of Medicare beneficiaries in the program from 10,000 to 15,000.

    Geography is also a feature of CHRONIC, with one proposal seeking allowance of a patient’s home dialysis facilities to count as a recognized originating site for telehealth visits (and their payments) and another eliminating the locational restrictions on telestroke consultations.
    While telemedicine access, regulation and reimbursement and has historically been a largely state-by-state issue, more federal legislation is on the docket this year. A bipartisan Senate bill called the Telehealth Innovation and Improvement Act was just introduced this week, and seeks a requirement to the Center for Medicare and Medicaid Innovation (CMMI) to “test the effect of including telehealth services in Medicare health care delivery reform models.”

    In other telemedicine news, Texas has further progressed with two pieces of legislation aimed at children. The state House Public Health Committee passed a bill that would establish a resource program in rural Texas to set up more pediatric telemedicine-connected facilities, and the Committee also held a hearing on a bill that would allow schools to bill Medicaid for certain telemedicine services.   

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    Heather Mack
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    Accessing medical services across the expansive state of Montana can be tough. With a majority of residents marooned in rural areas that can be separated by significant distances or poor road conditions, more people are using telemedicine to meet with their doctors. Accordingly, legislators have introduced a billto put, as Representative Kirk Wagoner said, “sideboards on the practice of telemedicine in Montana.”

    House Bill 389 sets the rules for how doctors and patients can establish first-time relationships, requiring them to meet either in person or through video chat. After that, they can continue on with audio-only, if they choose. Proponents of the bill, including members of the Montana Medical Association, embraced it because it doesn’t specifically prevent the usage of any types of telemedicine after the relationship has been established. But the first-time relationship requirement irked Teladoc, which conducts most of its visits over the phone. The telemedicine company spoken out against the bill, claiming it is not “technology neutral enough”, according to the Great Falls Tribune.

    While no immediate action was taken on the Montana bill, Teladoc still has its hands full in Texas, where the never-ending tussle over telemedicine marches on. The stay granted by a federal judge in the case between Teladoc and Texas Medical Board will last until September.

    The sparring group of medical and industry leaders first announced they had come to this compromise in February around the same time the American Telemedicine Association put out their state-by-state assessment of telemedicine practices that pegged Texas as the state with the lowest composite score.

    Teladoc sued the Texas Medical Board in state court way back in April 2015, alleging that because the board was made up of practicing doctors with a financial interest in squelching telemedicine, the board's passing of anti-telemedicine legislation constituted a violation of antitrust laws. But the medical board filed a motion asking for the suit to be dismissed on the grounds that there is, in fact, state supervision of the medical board which would make it a state agency under law and therefore immune to suit. When the judge denied the motion, the medical board appealed to the Fifth Circuit court. In October, the Texas Medical Board dropped its appeal in its case against Teladoc.

    There was also legislative action in telemedicine in Indiana this week. House lawmakers sent a bill to the governor that would expand services across the state to Medicaid patients. While the legislation was prompted by state psychiatrists who say the bill fills a crucial need for those living in rural areas, others are concerned with the bill’s provision to lift a ban on using telemedicine to prescribe controlled substances, such as Ritalin or Adderall.

    “I’m very concerned that this would allow somebody out-of-state to prescribe a controlled substance in this state to someone they’ve never laid eyes on,” Representative Ed DeLaney said, according to Indiana Public Media

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    Heather Mack
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    With an emphasis on member engagement strategies, some big new clients and a boost in utilization from a “short but severe cold and flu season” in early 2017, Teladoc’s first quarter of the year kept the telemedicine company in good financial standing.

    With record-high visits totaling 385,000 in the quarter ending March 31, the company saw revenue increases across the board. Total revenue was at $42.9 million, representing an increase of 60 percent from Q1 2016, with subscription and visit fee revenues at $34.3 million (up 66 percent) and $8.6 million (39 percent), respectively.

    Membership reached 2.6 million, an increase of 34 percent year-over-year that the company owes to a targeted effort to engage members with what they called “surround sound engagement strategy” and “seamless implementations” of new client business from the likes of Southern California Edison (the primary electricity supplier for the region) and the employees of Yale University.

     “Our increasing client roaster reflects the flexibility of solutions we offer to the hospital market as well our compelling vision to help providers build healthier communities and improve patient outcomes,” Teladoc CEO Jason Gorevic said on a call with investors. “We're also pleased by contributions from our behavioral health offering, in which revenue more than doubled year-over-year, to reach approximately $5 million in that first quarter. We expect to maintain this trend throughout 2017.”

    Gorevic also mentioned the company’s new employer clients such as Dullards, Bear and Paychex, and said Teladoc has found increasing interest in provider markets, as evidences by newly signed agreements with multi-care health systems in Washington, Pennsylvania and an expansion with New York’s Mount Sinai.

    “We also have significant interest in our specialty products from our health plan partners and have begun to roll out behavioral health and dermatology into their large books of business,” Gorevic. “Our increasing client roster reflects the flexibility of solutions we offer to the hospital market as well our compelling vision to help providers build healthier communities and improve patient outcomes. We're also pleased by contributions from our behavioral health offering, in which revenue more than doubled year-over-year, to reach approximately $5 million in that first quarter. We expect to maintain this trend throughout 2017.”

    Looking forward, Gorevic said Teladoc is looking to expand their service offerings in effort to provide a “broad and integrated virtual care platform,” especially with their behavioral health products. That said, Gorevic said it was still too early to tell which trends exactly will shape how they go about attracting new clients, but that the company was seeing strong activity with health plans and large employers as well as hospital systems.

    Benchmark survey
     
    That would align with the recent findings of Reach Health’s 2017 US Telemedicine Industry Benchmark Survey, which showed hospitals are increasingly using an enterprise approach to telemedicine. Of the 436 respondents, 40 percent are using a centrally-managed platform rather than departmental approaches.

    "Last year, we observed significant increases in the number of telemedicine service lines being implemented in U.S. hospitals, and this year's survey confirmed the shift to the use of enterprise telemedicine platforms," Reach Health CEO and President Steve McGraw said in a statement.

    Respondents said they embraced telemedicine on an enterprise level for a specific platform’s value, such as interoperability and data analytics capabilities. The top three telemedicine objectives were all patient-oriented: improved outcomes, convenience and increasing patient engagement.

    While Teladoc (nor any other telemedicine platform provider) was not mentioned by name in the report, Gorevic pointed out something he has noticed that could indicate his company could serve as an example of what customers want.

    “The only other thing I guess I would say that’s different this year is that we’re seeing more activity with employers and health plans and hospital systems who previously chose one of our competitors and are coming to us for our solution and our ability to drive utilization,” Gorevic said. “That’s happening significantly more this year than it's happened in the past.”

    Texas update

    Gorevic also updated investors on the six-years-running legal happenings with Teladoc in Texas. In a move that would, at long last, put an end to the standoff between legislators, telemedicine industry members and the state medical board, the Texas House of Representatives is set to vote on a billto establish definitions and rules around telemedicine practice in the state. Goveric said the company was “cautiously encouraged” by developments.

    The bill – introduced by Representative Four Price and negotiated between the Texas Medical Association, the Texas eHealth Alliance, telemedicine provider Teladoc – was passed in the Senate last week. If passed, it would deem synchronous audiovisual interaction as an acceptable doctor-patient relationship; allow for asynchronous “store and forward technology” or other such audiovisual technology so long as it complies with rules set forth to ensure safety and quality of virtual care.

    “As many of you know, a bill that makes it clear that telehealth will continue uninterrupted in Texas, has been making its way through the state legislature and could become law in the next few weeks,” Gorevic said.  “The passage of this bill into law would resolve our outstanding issues with the Texas Medical Board and would represent a significant victory for the people of Texas in securing their path to quality, affordable and accessible healthcare.”

    The House is set to vote on the bill today.

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    Heather Mack
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    In the State of Texas, a major piece of telemedicine legislation is sitting on Governor Greg Abbott’s desk. Known as Senate Bill 1107 and House Bill 2697, the bill abolishes the requirement that patient-physician relationships be established with an in-person visit before telemedicine can be used.

    (Update: As expected, Abbott signed the bill on Saturday.)

    Texas is the final state of 50 to abolish this requirement, so the bill's passage will allow national direct-to-consumer telemedicine companies like Teladoc, American Well, Doctor on Demand, and MD Live to extend their video-based operations nationwide. Technically, there are still limitations in Arkansas and Idaho, as those states still have restrictions on phone call-only telemedicine.

    As well as opening up this market and bringing telemedicine services to a large, geographically distributed population that could greatly benefit from them, this bill also signals the end of a more than two-year legal battle between Teladoc and the Texas Medical Board that culminated in what might have been a landmark antitrust case.

    As we wait for Governor Abbott to sign the bill (and according to multiple sources, the signing is all but a foregone conclusion), MobiHealthNews is diving deep into the history of this bill, how it came to be, and what its passing means for Texas, telemedicine, and the nation.

    History: A medical board rule and legal battles

    In some ways, Texas is an unlikely last state to welcome telemedicine. As a large state with a geographically distributed population and a lot of rural poverty, it’s a prime candidate for the benefits of telemedicine.

    “Texas has 35 counties that don’t have a single family physician in them,” Teladoc CEO Jason Gorevic told MobiHealthNews. “They rank 46th in the country in terms of primary care physicians per capita at a time when the state’s population is growing faster than any other state. So the access issues are particularly acute.”

    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.”

    Coming together at the table

    Legislative attempts to end the lawsuit and meet a compromise on telemedicine began back in 2015. LaToya Thomas, director of the State Policy Resource Center for the American Telemedicine Association, told MobiHealthNews that there was a strong sense that legal guidance was the only way to not only end that conflict, but to prevent similar conflicts in the future.

    “Texas’s case is a unique one in which the state legislator needed to get involved not only because of what was happening with the medical board but the implication of what could happen with other boards,” she said, adding that a grassroots effort stopped the state’s counseling board from passing a similar rule.

    Nora Belcher, the director of the Texas eHealth Alliance, said that early attempts to create compromise legislation were too disjointed to make it through the legislature.

    “After last session, what I heard from legislative leadership was ‘Y’all get in a room and work it out’,” she said. “A bunch of the bills from last session were all aimed at resolving the Teladoc lawsuit in different ways. But because there were so many and they were so different they couldn’t get any traction.”

    So Belcher, along with Teladoc, the medical board, and a number of other stakeholders including hospitals and nurse practitioners, did just that. They started meeting a full year before the legislative session to draft a single bill everyone could be happy with.

    “You’ve got to tip your hat to the Texas eHealth Alliance,” Thomas said. “The folks they were able to get to the table were a multi-stakeholder group of hospitals, solo providers, and telemedicine providers. They had an insightful leader in Nora Belcher and they had someone they could trust.”

    As it turned out, the providers didn’t want too much: they wanted the assurance of a robust standard of care, no changes to the licensure arrangement, and some clarifications about reimbursements, particularly that health plans wouldn’t be expected to pay for phone calls or faxes. The legislature wanted a bill that wouldn’t be a “vendor bill” — that would protect all telemedicine providers equally. The law addresses all these issues.

    Gorevic thinks what ultimately led to the state and the companies being able to work together was just the changing perception of telehealth between 2010 and today.

    “Frequently regulators protect the status quo in the states of change,” he said. “I think that was the case here and – as is frequently the case – the more you can demonstrate the value and put in place measures to ensure equality, the more the status quo starts to change; it starts to adapt to innovation. Having been the leader in the market we were able to be part of that. Over time people started to understand telehealth was not a novelty, but a real solution to real problems in the healthcare system and could bring tremendous value to people in Texas.”

    The law even contains some novel forward-looking provisions, such as redefining store and forward technology to include cloud infrastructure. As we noted in our initial coverage however, the bill also makes Texas the 20th state to ban telemedical abortions, an aspect of the law that could well see legal challenge going forward.

    Ultimately, the legislature itself wasn’t the holdup: the bill passed unanimously in both the House and the Senate. 

    Other Texas telemedicine legislation

    SB 1107 wasn’t the only telemedicine bill to make it through the 185th legislative session in Texas, though it was what Belcher and her team referred to as “the big bill”.

    One bill, SB 1633, would allow more telepharmacy technology to be used in Texas in areas where they don’t have pharmacies. Another, HB 1697, would establish a grant program for teleNICU services for premature infants. A third, SB 922, would ensure Medicaid reimbursement for the use of telemedicine in schools.

    All but SB 1633 are on their way to the governor as well, and the telepharmacy bill is currently in reconciliation between the House and Senate.

    “It’s a shockingly good year for us,” Belcher said. “We had 17 bills last year and the only two that passed. Really this year if we get three of these four, these are huge, not just structural wins, but symbolic wins that say ‘Let’s have these big conversations.’ It’s new, it’s different, it’s scary. We’re past that as a state and that’s exciting.”

    Telemedicine in Texas is open for business

    Despite the current regulatory state of affairs, all four of the top direct-to-consumer telemedicine companies have some existing presence in Texas they’re building on. Teladoc and MDLive have been operating phone-only services, per their interpretation of the existing rule. American Well has been in Texas via its relationships with hospitals, which can currently use telemedicine for follow-up visits with no legal issues. The prescribing rule also has a longstanding mental health exception, so Doctor on Demand has been offering telemental health services in the state.

    But following the passage of the bill into law, all four companies will be able to operate video visits not just in Texas, but all across the country. 

    “Obviously we are the last state to completely authorize video direct-to-consumer telemedicine. That’s a big deal for the companies because they can now have a 50-state strategy,” Belcher said. 

    American Well CEO Roy Schoenberg was careful to highlight American Well’s decision to stay out of Texas, despite that the company does offer phone calls.

    “For us probably more so than any other company, we’ve taken the position that unless the medical board expressly embraces the way we do telehealth, we’re not open for business,” he said. “We need it to be in plain view. … unlike some of the other operators that have always found loopholes to operate in the state of Texas, believing that they won’t be prosecuted or the physicians won’t be prosecuted.”

    But now that the law is passed, he sees benefits not just for American Well’s direct-to-consumer business but for their enterprise partnerships as well.

    “The bottom line was since the medical board had issues with the formation of a physician-patient relationship, we didn’t operate at all. This impacted many clients of American Well including very large national insurers. Because we didn’t operate in Texas, they were kind of prevented from operating in Texas. Anthem, United, and many others deliver services over the American Well platform,” Schoenberg said. “This new bill that just came in opens the door for American Well and our whole ecosystem to deliver a variety of services there. Users who could only follow up with patients can now open up the system and harness the whole power of it.”

    Doctor on Demand CEO Hill Ferguson told MobiHealthNews in an email that his company will build on its mental health business to expand into other areas of care in Texas.

    “We have been able to provide mental health services through our video platform in Texas and grown our mental health practice robustly -- saving patients time and money they would have spent in traveling and in the waiting room,” Ferguson wrote. “Building on this success, we look forward to improving access and providing compassionate care to patients in Texas with the new law in place.”

    Scott Decker, CEO of MDLive, told MobiHealthNews that Texas is the company’s biggest state, but he isn’t concerned about new competition flowing in now that the playing field has been leveled. 

    “It’s not introducing more competitors for the [telephone] market where we’ve already established a big number of visitors," he said. "I don’t think we’re going to see all of a sudden a big percentage who are going to switch to video. What we’re really viewing this as is opening a bigger market in Texas. Thankfully we’ve established a good relationship with consumers in Texas and we see this as a net gain for us.”

    What’s next?

    This is a big victory, but it's far from the end of the legislative road for telemedicine. ATA’s Latoya Thomas noted a number of threads her organization is following: restrictive ocular telemedicine bills in Connecticut and Rhode Island, existing prohibitions on telephone visits in Arkansas, and new rules from Iowa’s physical therapy board that could limit telehealth use for licensed physical therapists, to name a few.

    “This is a good first step and a good indication to other states that if Texas can do it, other states can follow suit,” she said. “I think other states should be looking at Texas as a way to give telehealth the green light.”

    “Certainly there were a lot of eyes on the Texas deliberation of telehealth,” added Teladoc CEO Gorevic. “I’m not sure it’s the proverbial domino, but I would say the vote of support voiced by the Texas legislature is certainly a significant endorsement of the value of telehealth. And the other thing that’s interesting is it coincides with the positive movement in Washington. The CHRONIC bill, for instance, or the 21st Century Cures Act which has a fair amount of positive language relative to telehealth. While none of those is final and overarching, all of them unanimously voice support for the use of telehealth in improving the healthcare system.”

    Most agree that the biggest upcoming battle for telemedicine will be the battle for universal reimbursement.

    “Obviously the next big legislation domino to fall is Medicare reimbursement across the country for all Medicare type visits,” Decker said. “That’s probably the next big one the industry would love to see move down the path.”

    Even in states like Texas, which have parity laws on the books, it can be difficult to get reimbursed in practice. 

    “Parity is a very nice wording in the lawbook, but for physicians, if you ask them ‘will I get paid if I see my patients through telehealth?’ the answer is ‘I have no idea.’” Schoenberg said. “I think the root cause of the problem is that Medicare is sitting on the fence. Hopefully that will change, but in the meantime I think everyone is looking at each other, not sure what to do.”

    Until the next fight, providers, vendors, and legislators can celebrate what seems to be the rare legislative win-win, a bill it seems just about everyone is happy about.

    “This is where we’ve all wanted Texas to get for some time,” Decker said. “We couldn’t be happier. It’s a landmark for a major state like Texas getting in line with where the future is. It's one less barrier to the adoption of virtual care markets.”

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    Jonah Comstock
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    Teladoc CEO Jason Gorevic certainly had a lot to talk about on yesterday’s Q2 earnings call. Referencing the recent legislation in Texas and the company’s acquisition of Best Doctors, Gorevic called Q2 2017 "the most exciting quarter in the company's history”. On the call, Gorevic delved into some details about how Teladoc and best Doctors will integrate, shared some future plans for the company, and weighed in on some of the trends and rumors in health technology.

    The company saw a 68 percent year-over-year increase in revenue, bringing its earnings up to $44.6 million, with $37.5 million coming from subscription fees and $7.1 million from visit fees. It brought its total membership up to 20.5 million and conducted 309,000 visits during the quarter. However, Teladoc’s net loss was actually up year-over-year, from a loss of $14.8 million in Q2 2016 to a loss of $15.4 million last quarter. This can be attributed to increased spending across the board, including acquisition-related costs.

    Interestingly, Teladoc is seeing a gradual shift from phone visits toward mobile or web-based video visits. With 55 percent of visits conducted online, this was the first quarter to see that number top 50 percent.

    Teladoc also shared some customer wins on the call. On the employer side, Teladoc added Microsoft, with 180,000 covered lives, as a customer. But most of the gains highlighted were hospitals, including Adventist Health, Washington Health System in western Pennsylvania, and New York multispecialist group CareMount. Teladoc now works with 160 hospitals.

    As for the Best Doctors acquisition, which closed July 14, Teladoc has plans to deliver its first integrated interface for existing overlap customers in January, with a more comprehensive integration planned for all clients in mid-2018. The plan is to roll some of Best Doctor’s clinical consultation and data analytics strengths into Teladoc’s offering.

    “With clinical capabilities that span the entire healthcare continuum, Teledoc will soon represent the first stop for many consumers around the world looking to resolve their healthcare issues in the most efficient, high quality, and cost-effective manner,” Gorevic said. “Regardless of their needs, ranging from coughs to cardiac conditions, Teledoc will have the ability to help solve their concerns. By providing a single interface and intelligent guidance across the full spectrum of clinical capabilities, tools, information, and guidance in the Teledoc portfolio, we will transform how the consumer accesses the healthcare system, providing greater convenience, better outcomes, and unmatched value.”

    The acquisition is also shaping what products Teladoc is looking to develop next.

    “I think you’ll see us develop new services that leverage the respective capabilities of Best Doctors, with their sort of high-end specialty care, and Teladoc’s volume transaction processing and services,” Gorevic explained during the Q&A. “So that could look like things around chronic care management, post-discharge adherence, and follow-up visits for the hospital systems.”

    During the Q&A, Gorevic was asked about whether Amazon, currently a Teladoc customer, could find its way to becoming a competitor, now that the company is pretty clearly getting into health.

    “They are not the first large technology-oriented company to potentially be interested or express interest in this space. As you know, Google tried to enter this area. Verizon tried to enter this area. It is, as I think we've demonstrated, not as easy as it looks,” he said. “Honestly, I just don’t lose sleep about them as a competitor, and even if they do decide to get into this space, it's going to be many years before they have any real footprint.”

    On the prospect of Medicare reimbursement, Gorevic said that it would be “a long, gradual march” but he doesn’t see a sea change coming in any currently pending legislation. And on the topic of Doctor on Demand’s $10 visits in the newly opened up Texas market, he was similarly dismissive.

    “If I had to analyze it, I would probably say that they feel like they’re not going to have to give away too many visits since they launched the promotion for a limited amount of time at the beginning of August — not exactly peak season,” he said. “So I think that that’s something that will be a press release and we’ll never hear about it again.”

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    Jonah Comstock
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