How Will Medical Boards Answer the Telemedicine Call?

September 1, 2021

Like many things in health care, there is no uniform rule for telemedicine. In this episode Michael and Brad are joined by series regular Jay Reyero to share the story of a physician who found himself in a medical board investigation. Tune in as they discuss how telemedicine is viewed by medical boards across the country and the future of telemedicine in the post-pandemic world.

Listen to the full episode using the player below, or by visiting one of the links below. Below is the episode’s transcript which has been edited for readability. If you have any questions or would like to learn more, email us at info@byrdadatto.com.

Transcript

Intro: [00:00:00] Welcome to Legal 123s with ByrdAdatto. Legal issues, simplified through real client stories and real world experiences. Creating simplicity in three, two, one.

Brad: Welcome back to another episode of Legal 123s with ByrdAdatto I’m your host Brad Adatto with my cohost Michael Byrd.

Michael: Thanks Brad. As a business and healthcare law firm, we’re often immersed in the heavy details of a particular issue or project. It’s beneficial, if not mandatory, to every so often take a step back and evaluate the bigger picture. This season’s theme is Zoom Out. We’ve all been immersed in the life of a global pandemic, [00:01:00] we are going to take a step back and look at how the issue we discussed will be impacted in our new normal.

Brad: Michael, before we get into today’s episode, we probably should just bring on today’s special guest and not have most of the fanfare because this person joins us so much that me calling them a special guest is the wrong word. He’s just a series regular now.

Michael: I agree, Brad. He definitely doesn’t need a special introduction, even though he may want to be treated like he’s special, we’re happy to bring back our partner, Jay Reyero for another episode this week.

Jay: Thanks guys. It means a lot to me to have me back so often. When I heard about today’s story it really took me back in time to my first professional job. Can either of you guess what it was?

Michael: Well, I actually know this because you told me about it. I asked you how you got such an easy cell phone number to remember.

Brad: Hey, was the number 867-5309? [00:02:00] Is Jenny getting my number? Does anyone know?

Michael: Brad, so painful. Now audience, you know what life is like at Berta Datto. The overarching dad joke theme kind of permeates our office at all times. And for those of you who don’t know, yes it was a dad joke reference to the 1980s and a song.

Brad: Sorry it was just too easy, Michael. I actually know this answer too, Michael. One of your first jobs, Jay was working at a wireless company selling cell phones.

Jay: Correct. One of the perks of the job was rather than accepting whatever number was going to be automatically assigned, I could actually call in, work some magic, and pick the easiest number to remember. So that’s how I got such an easy cell phone number. Now thinking about today’s story I was reminded of all the popular phones that I used to [00:03:00] sell. So, Michael, what’s your guess as to which phone was the most popular?

Michael: I’m guessing it wasn’t the Motorola DynaTAC?

Jay: Going back to the cell phone of the eighties, it was the size of a brick and it was made famous by Gordon Geckko in the movie Wall Street. I think people closer to my age might think of Zack Morris from Saved By The Bell. But yes, Michael, that was just a little bit before my time, although I did come across a Motorola bag phone. Kind of a late eighties alternative, that wasn’t it. Brad, what’s your guess?

Brad: All right. Well, I guess I’m not allowed to talk about the eighties anymore since I started with an 80’s song, but you and I both love science fiction movies. There is a movie that came out that had a pretty cool phone. Neo used it in the movie Matrix. Is that the phone?

Jay: The Nokia 8110 or infamously referred to as the “banana phone.” [00:04:00] That’s close. Right brand, wrong version. No, the most popular phone at the time was the Nokia 5110 with all that snake glory. Remember that game? Of course I preferred the Motorola StarTAC, the first flip phone, mostly because I carried it in a belt clip holder on my hip. I felt like a Jedi with a lightsaber.

Michael: I just have to say, you’re just talking trash by calling it a Nakia. We are from Texas, it’s a Nokia.

Jay: For today’s story we can use Nokia.

Michael: That’s good. I can understand that word. Well, I’m glad we all took this trip down memory lane, but how exactly does this relate to today’s story?

Jay: Well, what all these phones had in common, other than being tagged vintage on Google searches, they didn’t have video capabilities. And so thinking about the technology of the phones that I sold, it’s incredible to think about their [00:05:00] evolution, where they were, where they are today. And that’s becoming a popular and integral part of the practice of medicine.

Brad: Totally agree. You know, having a video on your phone now, it’s great because obviously is another way to connect with people. And then for our clients and the healthcare industry, it’s as simple a call that ables them to interact with those patients face to face or otherwise. And it’s not surprising then that the telehealth has exploded and become much more accepted, not only by the patients, but now by states and their licensing boards.

Michael: That’s true, Brad, but even though telehealth is more accepted in today’s healthcare, there are still rules at play. And if you aren’t careful, you can find yourself in a situation similar to our story today.

Brad: Michael that’s right. Our client in today’s story was a physician that worked with providing telemedicine services in multiple different states. We’ll call him Dr. Nokia or Nokia, or what was Jay’s version? [00:06:00]

Jay: “Nakia”

Brad: Michael, what’s your preferred pronunciation?

Michael: I reject the cell phone sales person pronunciation, and we’ll go with Nokia, Dr. Nokia. Before we get started, Brad, you referenced a different term. You said telehealth. I believe that’s the first vocabulary word of the day. Jay, can you briefly explain the difference between telehealth and telemedicine?

Jay: Sure. This is actually a pretty common issue because the terms get used interchangeably. So generally speaking tele-health is going to be a broad term. It’s going to cover any health service that’s provided using telecommunications or some kind of other information technology. Telemedicine then is the subset of that, where we’re specifically talking about the practice of medicine using telecommunications or information technology. So each state may have different definitions, Texas, for example, excludes telemedicine from its definition of telehealth so they [00:07:00] don’t overlap. But generally speaking tele-health is a broad term. Telemedicine is a subset of that.

Brad: Thank you, Jay. Michael, I think we had two vocabulary words because we keep saying the Nokia differently and in today’s story we are dealing with telemedicine as Jay just explained to us and the impact, obviously it’s having now in the practice of medicine. And so we’re going to start our story with Dr. Nokia who was in the wellness space and particularly involved with hormone replacement therapy. His role was to conduct this physician consultation with the patients seeking treatment from telemedicine.

Michael: So give us a sense of what the process looked like for patients interested in treatment.

Brad: You know, this process is the typical process we see with a lot of our telemedicine clients. This one I’m about to explain is not as bad as I can explain any group that does this. So a patient is interested in getting help. Mostly they find them on online and then they’ll sign up for some forms and [00:08:00] fill out some medical history online. A representative of that company would then contact the patient and go through all the information, flush out their medical history and any more in-depth information they needed. And after that, if the patient is still interested in receiving hormone replacement, they are required to get certain diagnostic tests completed. Once all of that is done, then the patient is scheduled to have a telemedicine consultation with a physician. In this case, Dr. Nokia.

Jay: So you basically described the first part of a good faith exam. Something we’ve talked about in prior podcast episode, the MedSpa Widow Maker. And we talk about all the time. It sounds like it was a thorough process and much more comprehensive than others we’ve encountered before.

Brad: Yeah definitely. Jay, they actually had developed a lot of policies and protocols that they had in place.

Michael: Okay, well, this sounds good so far. So continuing on with what Jay said, what about the second part of the good faith [00:09:00] exam and the actual consultation with Dr. Nokia? What did that involve?

Brad: So once the patient completed this initial process and the schedule for the consultation with Dr. Nokia would conduct the telemedicine consultation with the patient, right? All this medical information that they gathered, all the tests they had, the patient’s goals, health or wellness or otherwise. And based on all this information, Dr. Nokia would then diagnose and prescribe a course of treatment.

Jay: Well, if that’s all of the story that you have, this can be a fairly short episode. So I haven’t really heard anything that raises alarm bells. Sounds like the process generally followed all the rules. We walk our clients through involving the good faith exam, so there’s got to be a plot twist coming.

Brad: There is a plot twist, Jay. You’re so smart. You must have listened to other episodes before. When the Arizona medical board opened up an investigation that was the first of our plot twists here. And what happened was, after attaining some records [00:10:00] of all the patients treated by Dr. Nokia in Arizona, the medical board selected just two patients that the medical board would then review in the investigation. Once they started looking into it, the medical board determined that Dr. Nokia had deviated from the standard of care buzzword in the treatment of both of these patients.

Michael: I assume they went through the process for these patients that you had described just a few moments ago. So what were the patients being treated for and what did Dr. Nokia prescribe?

Brad: Well, yeah, they did. One patient was evaluated for low energy, weight gain, described libido was decreased. Simply the valuation of the other person when they were old, like Michael Byrd, it was really weird. I actually read it. That was the actual diagnosis, Michael.

Michael: You got to describe the next vocabulary word libido after this.

Brad: The [00:11:00] entire process they went through for this particular series was all done by telemedicine with this consultation. Dr. Nokia and based off all this information that he had sitting in front of him, he came up with a course in treatment of involving testosterone, or HCG or vitamins or amino acids, or other types of course of treatments that are pretty standard when someone has these types of symptoms and they’re trying to counter with some type of wellness.

Jay: So where did the standard of care fall short in their cases now?

Brad: The most concerning finding that the medical board had was that Dr. Nokia failed to establish a patient doctor relationship before prescribing all the hormone replacement medications.

Jay: You said Dr. Nokia went through the normal process. So wasn’t there a telemedicine consult that would have established that [00:12:00] relationship?

Brad: Great question. This is why Jay is the smart one of the group. There is the plot twist here is that under Arizona rules, before you prescribe, you have to have a doctor patient relationship. And so you must either conduct a physical examination of that patient or have had a previous established doctor, patient relationship.

Michael: Wait, Brad, how can you use telemedicine if you’ve never had a previous established doctor, patient relationship as conducting a physical examination of a patient via telemedicine would seem possible.

Brad: Another good point. This is why Michael is the third smartest person on this podcast. So that’s a good question. And for the audience, as you heard, Jay was the first. Now on Arizona rules, they do allow physical examination to take place via telemedicine, but only, and I stress only, if it’s conducted in a real time encounter with audio and video capability. In Dr. Nokia’s case with these two patients, [00:13:00] the telemedicine encounters were conducted with audio only AKA on the phone call.

Jay: So because Dr. Nokia couldn’t see the patient, technically didn’t form the required relationship before treating them. So let’s think about what would happen if he had had an iPhone and was Face Timing with the patient, would that have solved the problem?

Brad: Another great question. It probably would not have been that simple in this case, given the there’s some other standard of care issues that we identified in the findings, it was a term that Dr. Nokia failed to discuss or consider other potential reasons for these patients symptoms. And again, failed to conduct a physical examination to look for signs of the reported symptoms or rule out other causes. There were also monitoring requirements associated with this prescription of these types of drugs. And none of this was done via the use of telemedicine as such, Dr. Nokia’s failures to pause and understand the bigger picture, now how’s his license on the line. [00:14:00]

Michael: Well, that’s quite a plot twist. Let’s take a quick commercial break and when we come back, we can talk about some of the issues that arise with the use of telemedicine.

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Brad: Welcome back to Legal 123s with ByrdAdatto. I’m your host Brad Adatto with my co-host Michael Byrd and our series regular, Jay Reyero.

Michael: Brad, this season’s theme is zoom out and you just told us Dr. Nokia’s story that involved telemedicine. [00:15:00] As part of our zoom out theme, let’s start with the bigger picture and how telemedicine is viewed by medical boards throughout the country.

Brad: Like many other things in healthcare, unfortunately there is no uniform rule for telemedicine. And I know that some federal organizations are trying that, but it’s different. So because of that, every single state is going to be different and have their own unique rules. Some states are more lenient while others have more restrictions. So you have to be really careful when you’re practicing in the telemedicine realm and whatever particular state you are, and you understand those states specific rules and requirements. And just because something works again in one state does not mean your neighbors next door, in that state it’ll be fine.

Jay: Michael, do you remember when Teledoc first started operating in Texas and it was using its phone only service and how that kicked off a long fight with the Texas medical board?

Michael: That was a huge steel in healthcare in Texas and it went on for years. I remember how big of a deal [00:16:00] this fight was because other states had already solved the issue and people wanted access to their service.

Jay: Texas is a great example of the evolution of telemedicine and how really just recently it’s all changed because at the time Texas didn’t follow other states in welcoming telemedicine into the state. It had very strict rules that kept telemedicine from really taking off. And essentially the Texas medical board’s position at the time was to forbid all telemedicine, without an in-person visit being involved. And eventually that fight resulted in legislation that abolished that requirement and allowed for the physician patient relationship to be established via telemedicine and set for some specific technologies and other things to do so. But it removed such a big barrier to telemedicine and this legislation change was not even five years ago.

Brad: Yeah. Establishing that patient physician [00:17:00] relationship via telemedicine is the key in all the areas. And that’s where the states all differ.

Jay: Thinking about a telemedicine visit and the type of patients, there are going to be two categories, and you mentioned it in the story earlier. One are the established patients. They’re fairly straightforward as you have some kind of preexisting relationship in place and are just using telemedicine in follow-up or for a new issue, but they are established. The second where we typically encounter most often is where you’re using telemedicine with a brand new patient. And this is really where the details matter.

Michael: So naturally the first place you have to start is identifying the technical requirements of a particular states telemedicine law. As we saw from Dr. Nokia story, even though conceptually, it sounded like the clinical treatment of patients was compliant. It was in the details where things fell short.

Brad: And that’s right. When looking at these rules, you have to determine how exactly to establish the provider patient relationship when [00:18:00] using telemedicine. .  Some may allow for audio only or store and forward technology, while all include some version of interactive real time video conferencing. Just as important though are the technologies expressly prohibited, which include patient submitted questionnaires or emails or texting or faxing, none of that is considered telemedicine. And we get this question all the time is what if they text me a picture of it before the call? And then I then talk to them about the picture. Well no, that’s still not good enough because that’s not interactive real time video.

Michael: And that was one of the issues for Dr. Nokia when he failed to conduct a video with his consultation, the Arizona medical board concluded that Dr. Nokia didn’t properly establish the required physician patient relationship.

Brad: Right. And as we saw our Dr. Nokia’s case, Arizona rules require a face-to-face examination before prescribing controlled substances and allow this through telemedicine, but only if there was audio and [00:19:00] visual technology used. So Dr. Nokia’s failure to adhere to this visual requirement piece meant that he didn’t satisfy a piece of the rule from the very beginning.

Jay: I think that’s an important thing to know is that this particular rule came about because the prescription was involved and a state may have a heightened set of requirements when it comes to prescribing via telemedicine. But understanding the requirements is sometimes the easy part, the hard part comes when actually applying the rules, the particular set of facts regarding the clinical operations.

Michael: What do you mean?

Jay: So one important theme emerges that I think that really forms the foundation of practicing telemedicine really, regardless of state, and that’s the standard of care. So when I talk to clients about telemedicine, one of the things that I constantly come back to during the discussion is that no matter what you must provide the same level and type of care via telemedicine, as you would in person. And anything short of that is going to be problematic.

Michael: That’s a good [00:20:00] point. And it leads to the problem that people tend to think that they can use telemedicine for anything because telemedicine is generally accepted. Now it can replace all instances of in-person visits, but in reality, that’s not necessarily the case. It’s really whether or not telemedicine may sense in that context is going to depend not only on the particular facts and circumstances, but also what is acceptable in the medical the community.

Brad: Great point, Michael. This is where clients have to walk through the specific facts of their intended operation, asking questions like what providers are involved, what types of medical services are they clearing through telemedicine? You really need a complete picture to be able to determine how to properly implement telemedicine, if you can at all.

Jay: In Dr. Nokia’s story, you never said how the Arizona board investigation got triggered.  Did one of the patient’s [00:21:00] complain or was it a competitor?

Brad: Jay, that is a great question. And you know, for those who’ve listened to our episodes in the past, they know that those are typically the ways. But no, in this case it was neither. It wasn’t a patient or competitor. Arizona opened the investigation because they received a Disciplinary alert from another state. Dr. Nokia had been disciplined for failing to meet the standard of care for guests, you can guess it, prescribing medication via telemedicine without establishing a physician, patient relationship sufficiently to come up with an informed diagnosis and provide appropriate care. That disciplinary action caused a ripple effect with multiple other states, including Arizona.

Michael: So what happened to Dr. Nokia with all these state issues?

Brad: Dr. Nokia couldn’t completely escape disciplinary action, but the good news was that none of the states that ended up doing an investigation actually revoked his license. He actually learned a very valuable [00:22:00] lesson that he needed to zoom out by taking a giant step back and reevaluate the entire model.

Michael: So before we wrap up this episode, let us zoom out to Nokia and let’s re-examine the big picture as we come out of the pandemic. What do you see happening with telemedicine in our post pandemic world? Jay and Brad, we can start with you and then I’ll share my thoughts.

Jay: So I’ll go first. During the pandemic, the reality was telemedicine was the only option at times. And so you saw various ways that the rules surrounding telemedicine were relaxed to allow for it to be used more often and make it easier for patients and safer. Telemedicine made healthcare available in a safe way. So I think because people have experienced this and providers have implemented it and it has proven to be effective during the time. I think you’ll see the push to adopt these relaxed [00:23:00] standards as the new normal, once the pandemic ends and possibly calls to further loosen it even more to make it even more widely implemented and become the primary way of practicing.

Brad: Yeah, I totally agree with that. Jay, we’ve seen that both Congress and many states are already starting to address that as Jay described. Because the pandemic forced all practices to reevaluate how they interact with patients. This can be as simple as using telemedicine occasionally or as Michael and I, we met someone just recently they have streamlined their entire process when they onboard new patients with these assessments by using telemedicine. The medical providers should still examine the use of telemedicine as any other app on their iPhone or tool in their toolbox. But like with all new shiny objects in medicine, it still must be done in a compliant way. So providers should hit that pause button and understand their state rules before dialing that number. [00:24:00]

Michael: Picking up on your theme, it’s like with anything new, you have your early adopters out there and then it gradually becomes accepted. I think what we’ve seen is both with the doctors and the patients that telemedicine became normalized through the pandemic. I agree with you guys that I think there’s a chance that the loosened standards will continue because it has been such a saver for healthcare and doctors and patients are using telemedicine in new ways. Like Brad said, I think we also need to watch out for kind of the boomerang effect where now that it’s normalized some bad actors will start figuring out some loopholes. And then they’ll start tightening the regulations up again.

Brad: These are all great points. Next Wednesday, we’re going to dive into some headlines that happened a couple years ago, as Michael said, boomerang effects where [00:25:00] bad actors got into the med spa industry and it caused a huge ripple effect when doctors and providers get handcuffed. Michael, that’s all the time we have for today, but join us next Wednesday when we have Lessons Learned From the Texas Botox Arrests.

Outro: Thanks again for joining us today. And remember, if you liked this episode, please subscribe. Make sure to give us a five- star rating and share with your friends. You can also sign up for the ByrdAdatto newsletter by going to our website at byrdadatto.com. ByrdAdatto is providing this podcast as a public service. This podcast is for educational purposes only. This podcast does not constitute legal advice, nor does it establish an attorney- client relationship. Reference to any specific product or entity does not constitute an endorsement or recommendation by ByrdAdatto. The views expressed by guests are their own and their appearance on the program does not imply an endorsement of them or any entity they represent. Please consult with an attorney on your legal issues. Please consult with an attorney on your legal issues [00:26:00].

ByrdAdatto founding partner Brad Adatto

Bradford E. Adatto

ByrdAdatto founding partner Michael Byrd

Michael S. Byrd