Podcast: Telemedicine, Part 1

January 25, 2021

Telemedicine, once a novel concept, has now become a necessity in the medical community. Join attorney Dan Ballard and host Tony Passalacqua as they discuss how a public health crisis has transformed the way we use telemedicine This podcast includes important topics such as rules and definitions for telemedicine. To maintain social distancing, this recording was conducted virtually. Due to some portions of the podcast being hard to hear, a transcript of the conversation can be found below.

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Tony Passalacqua: Hello and welcome to this edition of the TMLT podcast, Tech Telemedicine Tomorrow: Answers for Health Care Digital Trends. I'm your host, Tony Passalacqua. Today I have special guest, attorney Dan Ballard, from Ballard Simmons and Campbell LLP. And our topic today is telemedicine. Hello, Dan.  Can you tell me a little bit about yourself?

Dan Ballard, 0:19: Sure. Good to be here, Tony. And I'm an attorney in Austin. I've been practicing for about 37 years here and we have a small firm here in Austin, and all we do is represent physicians and various health care type things of medical malpractice and medical board defense are the main things that we do.

Tony Passalacqua, 0:37: Well, thank you very much for the introduction. So, let's go ahead and just jump into telemedicine. How is telemedicine defined?

Dan Ballard, 0:46:  Well, telemedicine is basically the interaction with a patient, for a patient-physician encounter. It’s being done by some sort of electronic means that could be in some instances over a telephone, and more frequently is over an internet-style, video-conference type of connection that usually is going to need to be HIPAA, you know, a HIPAA-compliant type of connection.

Tony Passalacqua, 1:17:  Wonderful. So, there's two terms that we hear a lot: telehealth and telemedicine. Is there a difference?

Dan Ballard, 1:24:  There’s a little bit of a difference that, honestly, I don’t think is very important from a legal perspective. The difference is that telemedicine has the term practice, kind of practicing medicine, within it. And it's the part that involves physicians and the mid-level practitioners, in other words, nurse practitioners and physician assistants. And then there's telehealth, which is a broader category that includes interacting with patients that could be interaction by nurses or by other providers who are not able to technically practice medicine. That's what I view is the difference. In terms of in practical terms, I don't think that matters a whole lot which term you do use. 

Tony Passalacqua, 2:13: Well, and it's also really important for our listeners to understand that we're, as we're discussing a lot of the telehealth/telemedicine definitions, they do vary from state to state, and we're mainly focusing on Texas. So, Dan, I had a couple of questions about what's the minimum standards for telemedicine. As I'm looking through the rules here on 174, one of the ones that jumped out to me is that the health care service or procedures appear to be the same as if they were in an in-person setting. Could you discuss that or describe that? 

Dan Ballard, 2:47:  Sure. What that's driving at is, is they're trying to get to, what's the standard of care for a telemedicine visit. Because many physicians are going to think, “Okay, here's my usual practice with my patients, and now I'm going to switch into utilizing telemedicine either, you know, on a temporary basis during COVID or on a permanent basis.” And the physician needs to evaluate how high is the bar in terms of quality here? Well, both the Texas legislature and the Texas Medical Board have been crystal clear that the bar that you have got to get over in terms of quality of care or the standard of care, it's the very same for that same patient as if they were sitting there on your exam table to where you could put hands on and examine them -  eyes on and look at them, listen to them, put a stethoscope on them if you need to, put whatever instrumentation on testing, all that stuff. It's the same standard of care in the telemedicine visit as though they were right there in front of you in the room. So, always remember that very fundamental important point.

Tony Passalacqua, 4:04: Processes can change a lot as practices shift from a brick-and-mortar location to telemedicine. What changes occur with the use of telemedicine, such as medications and notices?

Dan Ballard, 4:14: First, I’m going to rewrite your question a little bit.  Yes, there's two exceptions. So, that in terms of what can you prescribe, two exceptions. One is for treating chronic pain. Ordinarily, outside of the COVID crisis, ordinarily you cannot treat chronic pain with opioids via telemedicine. You’ve got to bring the patient in and see them and put hands on, eyes on that patient. During COVID, there's an exception. You can treat chronic pain via telemedicine. But remember when that emergency rule goes away, that exception goes away. So usual rule is you can't treat chronic pain. Second, you can't prescribe abortifacient medications. So we are like a, I don't know, I won't give a medical opinion here, but like if a plan B pill, if that's considered an abortifacient, and I don't actually know if it is, but if it is, you can't prescribe it via telemedicine. So, any other abortifacient type drug, you cannot do that. There's no exception for that during COVID. So, remember that and don't do that you would get in trouble for it. The other part of your question was about notifications that need to be given to the patient and are they different for telemedicine versus in person. In general, they're really about the same. You need to give a patient a notification of your privacy practices, and you need to obtain a patient's consent. And finally, you need to give them a notice about how to file a complaint against the physician, if they have some, you know, some dissatisfaction with their care, how to file a complaint of the medical board against them. So, it's really those three, you know, types of things are the things you need to get done. And I'll, I'll go ahead and add that for, you know, privacy notices, consents, and the complaint notice, you need to get those done before you have your visit. So that typically, I think that most practices are probably having their scheduling staff hand the patient over, you know, when they're doing the scheduling, they hand them off to somebody who can take care of these administrative details, basically, in terms of figuring out a way to get those notices to the patient electronically and figuring out a way to get them back with an indication that the patient agrees to them. And, it's important to remember also that, for example, with the consent, you know, they need to, you know, just to consent to treatment. And it doesn't actually have to have a signature of the patient on it, because that can become cumbersome, electronically, here. And the Texas Medical Board's Rules allow for some type of electronic acknowledgement by the patient that I've consented, I received my notices, and that type of thing. So that they could, for example, respond to an email, if you email them the notices, they could respond to the email with, “I've received them, I've read them and I agree to them. That's an important little, you know, I think a helpful exception [is] that you don't need a blue ink signature on a piece of paper, returned to you, but just some kind of acknowledgement.

Tony Passalacqua, 7:58: No, that makes a lot of sense. And I guess, you know, one of the other things that comes to mind is, as you're moving maybe more towards a telemedicine format, is there anything that's built into the telemedicine law here in Texas that talks about prevention of fraud or abuse?

Dan Ballard, 8:13: Yes, there is. You need to have practice protocols for how you're going to run your telemedicine practice, basically, or that aspect of your practice.  And these protocols that you would need to have need to cover how are you, as physician, going to prevent fraud and abuse. One of the main things that's involved with that is assuring that the person you think you're dealing with is who they say they are. And that can be difficult to prove with absolute certainty. In fact, it's probably impossible to do with absolute certainty. But it's very important that the physician take reasonable measures to assure that this person who's on here; it's like an easy example right now would be you can treat chronic pain. In fact, you can treat any kind of pain via telemedicine and you have a patient schedule a visit and you're interacting with them. And you ultimately decide that they need an opioid prescribed to them, which you're allowed to do via telemedicine. And it's very important here within the opioid crisis, that you establish that this is who they say they are. And that, you know, it helps prevent diversion and abuse and misuse and whatnot. So, yes, there is that requirement that you, you know, take measures, that you have a protocol set forth that shows how you're going to take those measures. And one final point I'd make about that, Tony, is that the TMA has developed a number of specific protocols and policies that can be utilized by physicians. If you're look up on texmed.org and look up telemedicine on there, you'll find a truly excellent array of protocols that some of the things we've discussed today. They're very applicable, very useful, very well done, and they’re Word documents that you can adopt and kind of make it your own and utilize it. 

Tony Passalacqua, 10:29: Moving on to the next question. So, one of the things that I constantly think about with telemedicine is, how it was pre-pandemic, during the pandemic, and then where we may move after the pandemic. What are your thoughts pre-pandemic? How was telemedicine set up?

Dan Ballard, 10:45: Yeah, um, one, I think it was, in many instances underutilized before the COVID pandemic. And I say underutilized because there's a lot of potential for using telemedicine in almost any practice in terms of at least performing follow-up care, checking with patients on you know, how it's going with the treatment we gave, medications were prescribed, that kind of thing. And what's happened here is that with the COVID crisis, it shifts everything into high gear, in terms of adoption of telemedicine, because there are many practices who have taken a position of, “We're shutting down our face-to-face visits, and we're only going to see our patients via telemedicine.” So, they've had instant adoption. Now, and, and everybody's found, you know, it's, it's a little bit complicated, it's not awful, but, but it's a little bit complicated to sort of get it set up and, and become compliant with the medical board's rules and what the statutory requirements of it. And, and again, I'll emphasize that, on that aspect of things, the TMA has a fantastic set of helpful tools in their telemedicine section, and everybody needs to go take a look at it, partly because it serves as a checklist. You look through it, and you say, “Whoa, I didn't realize any of that.” And, you know, whatever “that” is, and TMA will have helpful resources for you.

Tony Passalacqua, 12:31: Well, I know a few of the things we've talked about so far, we’re saying how some of the rules have been relaxed. So, one that comes to mind is a phone-only encounter, how's that changed, pre-pandemic?

Dan Ballard, 12:41: Yes. Yeah, in for pre-pandemic, you could use, you could have a telephone encounter via telemedicine, and it had a couple of specific limitations on it. One, is that you needed to have already established a physician-patient relationship with that patient via video teleconference or face-to-face visit. So, you couldn't establish a physician-patient relationship via the telephone. Now, we have a temporary emergency exception to that, that again, will go away. Once we're out of the COVID crisis. The temporary exception is that you can use a telephone to establish a physician-patient relationship. So, remember that that's temporary. Now, once we get back into the, what I'll call, older conventional rules on what you can use a telephone to do in a telemedicine context, the other criteria is that in a telephone only telemedicine encounter with an established patient, you need to be using some type of store and forward data. In other words, you need to be on your telephone encounter with your patient, either using the chart, which is stored data, photographs, perhaps which a patient has sent you, or another physician sent you, or that kind of thing. You could be using a radiology study that you're referring to, you know, or a radiology report that you're referring to. During the study, you could be looking at a lab, you know, lab test results, biopsy results, some kind of stored data, and then you're good to go with having a telephone-only telemedicine encounter with an established patient.

Tony Passalacqua, 14:55: Another component that our physicians are trying to utilize are their PAs or APRNs. Has that changed at all between pre-COVID and during the COVID?

Dan Ballard, 15:06: Right. No, I don't think that there's any change, either practically or legally, to the ability of physician assistants or nurse practitioners to practice telemedicine just like they were before. Pre-COVID, they have been allowed to step in and practice telemedicine, really, I'm going to say, just like a physician can. And what I mean by that “just like a physician can,” is that it would be as though they were in the office and the nurse practitioner or the physician assistant was practicing medicine just like a physician can. They can do the same thing telemedicine. So, no, that has not changed. There's no exceptions and they can just move right on forward into the telemedicine world just like the physicians are.

Part two of this conversation is available here.

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Podcast: Telemedicine, Part 2
Podcast: Telemedicine, Part 2

In part two, explore how telemedicine rules may change in 2021