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Texas Slammed for Proposed Telemental Health Restrictions

The American Telemedicine Association is criticizing a state board's plan to limit 'distance counseling' to Texas providers and require face-to-face visits before a virtual session.

By Eric Wicklund

- Texas health officials are coming under fire for yet another telemedicine proposal.

In a Feb. 10 letter to the Texas State Board of Examiners of Professional Counselors, the American Telemedicine Association criticizes proposed regulations that it says would limit residents’ access to mental health services and hamstring the state’s limited ranks of mental health providers.

The board is proposing that any “distance counseling” in the state be restricted to mental health professionals who live in Texas; in addition, any counseling done via telemedicine would only be allowed after the doctor and patient have met for a face-to-face intake session.

“(T)he board’s proposed draft could have more harmful implications for Texas clients seeking access to an already sparse mental health network,” ATA CEO Jonathan Linkous said in the letter.  “Further, the regulations will require licensed Texas professional counselors to follow a separate standard of practice when using telehealth, resulting in two different standards of care for clients in the same state. With regard to clinical practice rules and ethical guidelines, we believe that, as much as possible, the practice of telehealth should not be regulated differently or held to a different standard than in-person care.”

The proposed rules bring to mind another state attempt to regulate telemedicine.

The Texas Medical Board is headed to a federal trial over its attempts to amend existing regulations on first-time telemedicine consults. The board’s effort to require a face-to-face meeting between a physician and a first-time patient before the physician can make certain diagnoses or prescribe medications met resistance from Teladoc, a Dallas-based telehealth provider that does some 70 percent of its business via telephone. Teladoc has won several skirmishes in court, and is now suing the board on antitrust charges.

In writing to the Board of Examiners, the ATA – which ranked Texas among the worst states in its recent state telemedicine report cards – noted that some 200 of the state’s 254 counties are designated as Mental Health Professional Shortage Areas. It also pointed out that a 2014 Texas Department of State Health Services report said telemental health services “may prove beneficial in increasing the geographic reach of the mental health workforce.”

It than called on the board to review and remove the proposed rules.

“All telemental or behavioral health encounters, whether conducted in-person or remotely, should be based on the provider’s clinical competence and professional decision making using sufficient, appropriate clinical and non-clinical information to provide the health service,” the ATA said. “Yet, the board’s proposal would enforce clinically unnecessary and ethically questionable standards and severely limit client access to mental health and behavioral healthcare.”

The ATA also argued that the proposed rules could open the board to a lawsuit similar to that faced by the Texas Medical Board. Citing a 2015 U.S. Supreme Court decision in North Carolina State Board of Dental Examiners vs. FTC, the organizattion suggested that state licensing boards that regulate telehealth differently than in-person services “are newly exposed to risk of federal lawsuit for anticompetitive actions.”

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