Dan Ballard and host Tony Passalacqua continue their telemedicine conversation. In this segment, we explore the evolution of telemedicine and how it has changed not only how patients are seen, but also how it can help providers reach patients outside their area. We will explore several “what If” scenarios from a defense attorney's perspective. Lastly, we discuss rule changes that will occur in 2021. 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.
Tony Passalacqua: Welcome to part two of my conversation with Dan Ballard of Ballard, Simmons and Campbell LLP on the topic of telemedicine. In part one, we discussed the basics, such as rules, definitions, and how the pandemic has changed telemedicine.
We've covered a little bit about what happened pre-pandemic and during the pandemic, but where do you think a lot of these rules are going to go after the pandemic is over?
Dan Ballard, 0:28: I think that for the most part, Tony, it's going to stay largely the same in terms of practical aspects and rules with, of course, there will be the changes back to the pre-pandemic rules. In other words, you're not going to be using FaceTime and some of these less-formal, un-HIPAA-compliant, you know, not-HIPAA compliant modalities here. But, in terms of the bigger picture on things, I think that the body of rules and regulations that we have in Texas for telemedicine, it's really pretty good, and it works pretty well. And I think that that will largely just revert back to that. At some point, perhaps there will be changes in terms of how Texas physicians, you know, are allowed to interact with patients and other states. But that's going to take a while and it's probably maybe a separate discussion even.
Tony Passalacqua, 1:28: Dan, that actually helps me segue into my next question. So, telemedicine has changed the face of medicine in regard to access, where before an individual may have been restricted by physical distance to see a physician. We have now seen, with telemedicine, that barrier is now being removed. So, how has telemedicine impacted a physician's ability to treat patients at a greater distance?
Dan Ballard, 1:50: Yeah, Tony, I sort of see two topics. One is within the state of Texas, for a physician whose Texas licensed and is treating Texas-based patients or at least patients who are coming to see the doctor in Texas, and then there's the across state lines issue. Let me take the within-Texas first. It's really important for physicians to keep in mind this concept of that the standard of care is the same for telemedicine visit as it is for an in-person visit because what I'm what I'm seeing as I interact with doctors on this is that they feel like, “Well, I'm treating a patient out in an underserved area. I'm in Houston, and this patient is way out in West Texas, and if I don't take care of them, then nobody's going to. So surely everybody's going to cut me some slack.” It's like, no, no, legally speaking and from a regulatory standpoint with medical board, they will not cut you any slack on that. If you can't meet the in-person standard of care, then refer that patient out to somebody else. Have them see somebody more local to them. Have them go to urgent care. Have them come into the city and come to you - whatever solves that problem. But don't just think, “Oh, I'm being a good guy, so they're going to cut me some slack.” Because that's not how it works. Secondly, then there's the across state lines issue, and very important for Texas physicians to realize is that you may have read some of the national media on reciprocity. “Oh, everybody's got reciprocity; you can just kind of step across state lines.” Not true. For Texas. You, as a Texas-licensed physician, are not granted any privileges in any other state. We don't have reciprocity with anyone. So, if you're going to take care of a patient located in Chicago or San Francisco or wherever, then you need to be licensed in Chicago or San Francisco or wherever. Because those other states are going to feel like, “Hey doctor, you're practicing medicine in our state without a license, and we don't like that.” So, be very careful about that. If you're thinking of setting up some type of national practice or whatever, it’s probably not going to work out for you as a Texas-based physician. You're going to step on other states toes on that.
Tony Passalacqua, 4:29: Does the same apply for different countries? Like, let's say a patient flies into Houston to receive care and then flies back out, and you try to maintain that relationship. Is that the same thing?
Dan Ballard, 4:39: You know, it's a little bit different issue there. From a practical standpoint, in terms of, you know, I gave the example of somebody who's in Illinois or California, and the Illinois or California Medical boards may have, or will have, a problem with [you] practicing medicine on their citizenry. You know, whereas if somebody is from Germany or Spain or Costa Rica or whatever, from a practical standpoint, it's difficult for those other international governments to enforce anything against an American doctor. They may be unhappy about it and may try to tell you to stop it. But as a practical matter, it's kind of hard to enforce. And I'm not saying go do something that somebody else thinks is illegal. But from a practical standpoint, would it turn into a problem? I doubt it. But does it turn it into a problem to treat someone in San Francisco? Yes, that's going to become a problem for you. So, it's a little bit different in terms of practicality - other states versus other nations.
Tony Passalacqua, 5:55: That kind of brings up another really interesting question. But we've talked a lot about, what happens if the patient is kind of moving around? So, let's say a physician is out of the country and wants to maintain seeing their patients via telemedicine while they're on vacation. Or something like that.
Dan Ballard, 6:15: Yeah. Interesting question. And these days with travel, our mobility, that can actually come up. And the point for a Texas-licensed physician to remember is that they are regulated by the Texas Medical Board. And the Texas Medical Board is going to be okay with that physician having telemedicine encounters with Texans who are in Texas. So, if the doctor is away in Canada, and has a telemedicine encounter with a patient who's in Austin, or Houston, or Dallas, that's going to be fine. Texas Medical Board is going to say, “You're a Texas physician, you can treat that Texas patient.” And likewise, being in another state and interacting back to Texas with a patient, that's fine. So, the key to remember here is that where the physician is practicing medicine is determined by where the patient is. So, if the patient is in Texas, the physician is licensed in Texas, you're going to be good to go on that. And if you're not licensed in Texas, Texas Medical Board is going to say, “Stay out of here. You just crossed our lines electronically and trying to treat patients that way.” And other states will say the same thing. “Hey, Texas physician don't come into Illinois electronically and treat our patients up here. We want to be able to regulate you, and you’re practicing medicine without a license.”
Tony Passalacqua, 7:51: Dan, what happens if a telemedicine video drops in part or in its entirety? Does the physician lose the ability to bill as a telemedicine visit? Or who should they check with?
Dan Ballard, 8:00: Yeah, you know, I'm going to generally say, don't bill for an incomplete visit. Partly, mainly, the patient has not gotten value, the value that they would have gotten ordinarily in a completed visit. Perhaps you just didn't finish, and you may feel like, “well, I took all my time here and whatnot.” But from a defense lawyer standpoint, where I'm looking out for the interest of doctors here, I'm going to say don't get yourself in trouble by, you know, making a patient unhappy in that way. That patient doesn't want to be billed for that visit. So, I'm going to generally say, don't do that. They may file a board complaint against you. They may have a legitimate complaint against you on that, if you truly didn't provide the service that everybody thought you were going to provide, and it got interrupted by an internet outage or that kind of thing.
Tony Passalacqua, 8:57: That kind of brings me to another interesting question that I sometimes feel that physicians are concerned about. And that is, what happens if a differential diagnosis starts to alter the treatment of the patient? What should a telemedicine doctor do if they feel the visit is something more than just, let's say, like a basic medication refill or the flu, and it's actually something that maybe requires a trip to the ER or an urgent care facility.
Dan Ballard, 9:20: Sure, in that case, the physician needs to curtail that visit, cut it short, and get the patient to wherever is appropriate to get that care taken care of. Now, it could be, you know an easy example is, you as a physician are doing follow-up care with a patient who you've put on, you know, gastric reflux medication and you have a little 30-day-checkup visit with them to follow through and see how we doing on this and [what] do we need. “Yeah, doc, you know, it was doing okay for a while, and in the last couple of days here, wow, this pain in my abdomen. It’s sort of going north and into my chest and it's kind of worse when I get up and climb stairs.” You can see where I'm going there. We’ve got a problem here. And in a visit like that, that turns into something else, other than what it was, again, in terms of billing aspects of it, I'm going to generally encourage you to not bill for something where a patient feels like, “I didn't get my value. I didn't get treated, and we never got around to actually, you know, tuning up my medications here, because you told me I need to hang up and call 911.” In that situation, it's good risk management to put yourself in the patient's shoes and say, “Would I be happy with paying this bill here, when I didn't get done, I didn't turn into what I wanted it to turn into.” And that patient may be aggravated, and, you know, may make a board complaint. And even if you could defend yourself at it, defending yourself against a board compliant is highly unpleasant. And it will, it will take a year off your life. So, I'll encourage you to avoid that any way you can. Try to not go there with a patient. So, be careful about it. And let me just add a point here with your schedulers, especially for kind of scheduling of something where, “Hey, I really need to see the doctor immediately here.” Be sure your schedulers are very well tuned in to how immediate do you think you need to be? And why is this truly urgent? And should we really be waving them off, and not even having the visit, and sending them to emergency room or some more urgent type of care that could be available to them? It's very important to not sort of get into the trap of “Well, just schedule it up, and we will take it up at that time.”
Tony Passalacqua, 11:58: I think you bring out a really valuable point up. So, if there is an emergency and you're telling the patient to call 911 or to go to the emergency room or urgent care, (with) that information, what would be the best way of documenting that?
Dan Ballard, 12:14: Yeah, I mean, you document it in a more or less a routine fashion. That's how we ended this visit. Usually, you're going to end up your charting with, “Here's my assessment, my plan, my prescription, my advice, whatever, in my follow-up instructions.” And it's going to be largely the same type of formula there. It's just going to have significant words in it that terminated this. “I told them to call 911 and to let me know what happened from it, Joe.” So, it would be that type of thing. But it does definitely need to get charted. “Even though we didn't get very far into this visit with this patient, he terminated it.” We still need to have clear recall and clear record, if it ever got brought up to the board or whatever. So, charting would be the usual requirement there.
Tony Passalacqua, 13:05: So, in your opinion, what are the areas of greatest liability for a physician who is using telemedicine?
Dan Ballard, 13:12: Yeah, that one, I think is an easy question for me. I see a lot of doctors being tempted by treating sort of newish problems that they would manage differently in person. Just some new problem comes up with a patient. It's not yet diagnosed. The patient may think they can diagnose it themselves. They may think they know what they have. But if you had that patient in your office, would you do things differently than you did on this telemedicine encounter? That's the key. That's the key. Because if something goes wrong here, and, in my mind, it's just mainly a numbers game, in terms of will anything ever go wrong? If you see enough patients, eventually, you're going to have a delay in diagnosis or misdiagnosis or, you know, some kind of things didn't go like I wanted them to here. And, if that one patient finally comes up, and you sort of draw the [inaudible] on a telemedicine encounter, you kind of get asked the question, “Would you have done things differently if you had your hands and eyes on that patient?” And, if the answer is “Yes,” which very often it would be on a new problem that's being presented to you by the patient, the answer is “Yes.” Then, as a defense lawyer, I may have a problem with defending you successfully, because that's what this is all about. The standard of care is the same for a telemedicine encounter [as it] is for an impatient encounter. And, if you can't do that, then don't do that. That's, that's the rule. Get them off to somebody who can put hands on, and get them in to see you, whatever is necessary. But don't go down a road that you can't go down safely.
Tony Passalacqua, 15:12: Dan, is there any anything else that we should know about with how medications are handled for telemedicine? I know one of the things that a lot of people are using is E prescribe. Are there any specific details anyone should know about with that?
Dan Ballard, 15:25: Actually, yeah, I'm glad you asked. There is a new rule to take effect three months from—we’re recording this in October 2022—in two and a half months now. A new rule is going to come into play on January 1, 2021. Here's the rule. If you're prescribing any controlled substance to your patient, you can only do that by prescribing, any controlled substance, [it] has to be prescribed by E-prescribing, starting on January 1. If you're not set up for E-prescribing, you need to get ready in a big hurry. Because it's coming right up on us.
Tony Passalacqua, 16:04: Dan, you talked a lot about some of the exclusions that are occurring right now during the pandemic. Is there anything that's an exclusion towards the standard of care?
Dan Ballard, 16:15: No. Tony, that's a great question, and it's very important for everybody to remember that this same standard of care rule has no exceptions during the COVID process. So, you can have a telephone encounter that you might not have otherwise been allowed. You can have a FaceTime encounter that you might not have otherwise been allowed. You know, and that those are exceptions that are created for the COVID crisis. But the bottom line is the same as it's always been, that even during COVID, the same standard of care applies to a telemedicine encounter as applies to that same patient sitting there in front of you in your exam room—same standard, same standard of care, no exception for COVID.
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