Telemedicine company Teladoc may continue – for now – to treat patients in Texas over the phone, without having to meet or see them face-to-face, a federal judge decided Friday.
Some say the order may signal that Teladoc has a good chance of winning its case against the medical board.
The case is thought to be one of the first that could be affected by a recent U.S. Supreme Court ruling about state regulatory boards' immunity—or lack thereof—from antitrust laws.
Federal judge Robert Pitman, for U.S. District Court in Austin, Texas, decided late Friday to issue a temporary restraining order and preliminary injunction to keep a rule passed by the Texas Medical Board from taking effect June 3 as planned.
The rule requires physicians to either meet with patients in person before treating them remotely, or treat them face-to-face via technology while other providers are physically present with them when treating them remotely for the first time.
Teladoc treats patients over the phone. Teladoc cheered the ruling in statement, saying it shows that the company is likely to succeed in the overall case.
“With this latest episode behind us, we look forward to delivering the full value of telehealth to the people of Texas indefinitely,” Teladoc CEO Jason Gorevic said in a statement Friday. “In the face of increasing physician shortages and rising healthcare costs, other states across the country have found solutions that embrace telehealth, and all its benefits, while ensuring patient safety."
"Today's court ruling allows Texans to continue enjoying these benefits as well.” Megan Goode, a spokeswoman for the Texas Medical Board, said Monday in an email that the board has no comment except that it is “presently evaluating all available options.”
Teladoc sued the board over the rule in April saying it violates antitrust laws because it would inhibit Teladoc's ability to compete. Teladoc also alleged the rule would lead to higher prices and reduced access to doctors.
The Texas Medical Board has, however, characterized the new rules as an expansion of telemedicine opportunities “representing the best balance of convenience and safety by ensuring quality healthcare for the citizens of Texas.”
The board argued in court documents that its rule does not limit competition because it does not prohibit telemedicine so long as a doctor can see a patient face-to-face while another provider is present with the patient. The board argues that, “Protecting patient health and safety and improving the quality of patient care are considered procompetitive benefits of state regulation of professional health care services.”
“There are many visual cues that a patient might not know to mention (or even be aware of) that could be overlooked in consultation exclusively by telephone but which, if known to the physician, would lead to giving different medical advice and/or prescribing different medication,” according to court documents filed by the board.
The board also argues that Teladoc's model raises concerns about record keeping and continuity of care. But Nathaniel Lacktman, a partner at Foley & Lardner and the leader of the firm's telemedicine practice, agrees with Teladoc that the judge's decision Friday suggests it has a chance of winning the overall case because the company had to demonstrate a sufficient likelihood of success to get the order.
More broadly, the case could have implications for a number of other state boards as they develop rules surrounding telemedicine, Lacktman said. “The court's ruling may be a signal to state medical boards to be forward-looking and open-minded when developing rules, particularly when it comes to regulating new and innovative ways of providing healthcare to patients,” Lacktman said in an email.
A few other states, such as Alaska and Arkansas, have rules requiring in-person examinations before doctors may offer telemedicine consultations, though some of those states have exceptions to those rules based on the specific situation, he said. Other states require an in-person exam before medication is prescribed via telemedicine, but some of those states' boards will waive those rules on a case-by-case basis. Still other states don't have formal rules requiring in-person exams, but have sanctioned doctors for prescribing medicine remotely without first conducting an adequate exam, Lacktman said.
The Teladoc case is thought to be one of the first that could be affected by a recent U.S. Supreme Court ruling about state regulatory boards' immunity—or lack thereof—from antitrust laws.
In North Carolina Dental Board v. FTC, the Supreme Court said that state licensing boards made up of active members of the profession, such as practicing doctors, are not immune from antitrust laws unless they are actively supervised by the state. Twelve of the Texas board's 19 members are practicing doctors, and Teladoc alleges that neither the state of Texas nor the state's Legislature actively supervise the board. Lacktman said a decision in the Teladoc case will likely hinge on that Supreme Court ruling.
Dr. William Sage, a professor at the University of Texas School of Law, also said debate will continue in the case over whether the Texas Medical Board is immune from antitrust action following that North Carolina case.
“My personal opinion is this decision of the medical board was not adequately supervised by the state itself in a way that the Supreme Court would insist on after the North Carolina case,” Sage said. But he cautioned, “that would be an extensive litigation process to actually hold that.”
The judge's decision Friday in the Teladoc case bars the Texas rule from taking effect until the case is resolved.
