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Preliminary Injunction Supports Telehealth Services in Texas

By Kyle Murphy, PhD

- The Texas Medical Board has reached an impasse relating to its recent decision to implement a rule constraining the use of telehealth services in the state. The United States District Court for the Western District of Texas granted a preliminary injunction preventing New Rule 190.8 from going into effect on June 3, 2015.

Telehealth services remain available in Texas as a result of a preliminary injunction

District Judge Robert L. Pitman ultimately sided with telehealth provider Teladoc, which filed for a temporary restraining order and preliminary injunction in late April 2015 on the grounds that the TMB's regulatory changes violate antitrust law and would cause irreparable injury to the company.

The rule would require physicians to have face-to-face encounters with new patients prior to writing prescriptions, as reported by in April.

Regarding the issue of antitrust, Pitman notes in his ruling that the case is "atypical" in that TMB "declined to assert any immunity defenses" and instead contend that Teladoc could not prove the anti-competitive effect of New Rule 190.8.

The judge disagreed on numerous grounds — the first centering the comparative costs of telemedicine and face-to-face patient services:

Plaintiffs’ evidence shows  the average costs of visits to a physician or emergency room are $145 and $1957, respectively, and the cost for a Teladoc consultation is typically $40 … Plaintiffs also cite to research finding companies using Teladoc’s services achieved reduced monthly employee healthcare costs.

Teladoc's complaint additional found support from evidence about physician shortages in rural parts of Texas. "Elimination of physicians providing healthcare would thus negatively impact not just the competitor physicians, but consumers, a classic antitrust injury," Pitman adds.

As for TMB's argument justifying New Rule 190.8 on the grounds that it would promote improve care quality, Pitman was not convinced:

As the TMB itself makes clear, it has the authority to , and regularly does, investigate complaints against physicians who do not meet the standards of care for practicing in Texas.  In light of the existing restrictions on poor quality care, the Court finds TMB’s assertion of additional improvement in the quality of care by the adoption of New Rule 190.8 suspect.

Along similar lines, the judge did not agree that telehealth use would prevent a patient from having a single patient record because patients currently "have records scattered across a variety of providers."

According to his commentary, Pitman was most troubled by TMB's interpretation of RAND study on use of Teladoc by a large public employer in California. Ateev Mehrotra, MD, MPH, MSc, testified that the TMB "mischaracterized his research," particularly in one area:

Mehrotra specifically takes exception to the statement that his study “found” that Teladoc consultations "could lead to misdiagnosis and higher need for follow-up visits."  …  Instead, he states the “data showed that, across the three leading conditions treated by Teladoc, 13% of visits to physicians’ offices and 20% of visits to the emergency room led to follow-up care, whereas only 6% of Teladoc calls led to follow-up care,” results which “do not support the hypothesis that Teladoc has higher rates of misdiagnosis or mismanagement.” 

Based on the ruling, TMB and Teladoc must reach a final resolution before New Rule 190.8 can be enacted and enforced. For its, the state's medical board is standing behind its belief that the regulatory changes are all about patient safety and care quality.

"Protecting patient health and safety and improving the quality of patient care are the Texas Medical Board’s responsibilities," TBM President Tom Garcia told The Texas Tribune. "TMA supports the challenged rules and believe they fulfill the board’s mission."


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