Texas argues Teladoc should require doctor visit prior to telemedicine

The Texas Medical Board has asked an appeals court to remove Teledoc's case against the state as a riposte to the telemedicine company's legal suit. Teledoc had sued Texas in order to prevent it issuing regulations that demanded a real-life visit to a patient before a virtual one, claiming that this was anti-competitive. This legal action has become a hot topic for the telemedicine community, which is carefully watching to see the extent of actions taken by states to limit telehealth startups within their borders.

Texas states case to appeals court

With help from Darius Tahir (@DariusTahir)

TEXAS RESPONDS IN TELADOC CASE: Let’s start with a one-sentence summary of the Texas Medical Board’s argument for why a federal appeals court should throw out Teladoc’s case against the state: There’s plenty of oversight given to the board, and no antitrust fears are warranted. Remember the telemedicine giant sued Texas to stop regulations that would require an in-person visit before a virtual one, saying it’s anticompetitive after the Supreme Court’s ruling last year in North Carolina Dental Board v. FTC. The Texas dispute has turned into a must-watch case for the telemedicine world, deciding how much action states can take to limit telemedicine companies within their borders. A federal judge in Austin had already declined to dismiss the case.

— In the state’s brief to the Fifth Circuit late Friday, Texas gives several reasons why it’s clear of antitrust violations. 1) The governor appoints board members, as opposed to state doctors. 2) State sunshine and ethics laws provide oversight of board action. 3) The state legislature and state judges’ review. “Finding a lack of active supervision in this context would not only intrude on the state’s sovereignty and alter the balance of cooperative federalism, but lead to several other negative consequences,” Texas argues. Pros can find the full brief here: http://goo.gl/K8gg4z

— Of course, the Texas Medical Board’s actions and the court’s decision could be moot if state lawmakers draft a law saying it’s OK for out-of-state telemedicine doctors to treat Texas patients. Momentum is building toward just such an outcome.

JONATHAN BUSH OPENS UP: Well, let’s be honest, he pretty much speaks his mind whenever given the opportunity, but I did have a chance to sit down and talk about a few topics with the athenahealth CEO when he was in D.C. last week. A Clinton White House will be much of the same as the last eight years under Barack Obama, he predicted, adding that would mean more micro-management of policies. “The complexity and the rules and the acronyms,” Bush said. “There’s no unplowed fields to run out and grab, and that’s where we, as a society, are best.”

— What will a Trump-run HHS look like? No clue, Bush said. But if he had to guess, it would be “extremely laissez faire” and without a lot of Harvard graduates. “There will be no social engineering from Washington.” Bush said. “There won’t be these extremely granular and specific, targeted behavior modifications through McKinsey and other think tanks.”

— Other notable points: Congress doesn’t need to intervene with more legislation, Bush said. In fact, he said it needs to undo certain laws, like the HITECH Act, which he called a disaster.

— Bush believes athenahealth can succeed in working with smaller hospital systems because its cloud-based EHRs take less overhead to implement and maintain than the earlier generation of electronic health records. Financially struggling hospitals aren’t losing money on IT projects because of the computers they have to buy. “They’re losing money because of the people they hired to operate the computer system that they borrowed the money to get.”

Pros get access to the full story here: http://politico.pro/28Iw3xb

IN MORE ATHENA NEWS: Athena General Counsel Dan Haley explained why his company declined to participate in ONC’s recent transparency pledge. “The health IT industry is either going to quietly acquiesce to de-facto regulation-by-pledge, or we aren’t,” Haley writes. “In light of the available evidence and the government’s increasing affinity for such tactics, it might be time to draw a line by taking a Pledge Against Pledges.” The post: https://goo.gl/Wl8v3D

eHealth tweet of the day: Nick van Terheyden @drnic1:Well said @Doctor_V response to @AmerMedicalAssn assertion that #DigitalHealth is Snake Oil http://bit.ly/1rvJEk1

https://twitter.com/drnic1/status/744569380906876928

Welcome to Monday morning eHealth where I am excited to start reading a book that was delivered over the weekend on the future of public hospitals, A Spirit of Charity from Mike King. Give this health wonk a few weeks to get through it, and I’ll give a recommendation then. In the meantime, share your favorite health-themed books this year with [email protected] and connect with us on Twitter @ David_Pittman, @ arthurallen202, @ DariusTahir @ POLITICOPro, @ Morning_eHealth.

PROVIDERS TO CMS: PUT THE BRAKES ON eCQMS: Hospital groups wrote CMS on Friday asking the agency to reconsider requiring hospitals to submit 15 clinical quality measures (CQMs) electronically. Hospitals are required to submit four this year. “CMS significantly underestimates the complexity of generating valid, reliable and accurate eCQMs without human intervention,” CHIME stated in its comment letter.

— The American Hospital Association wrote “there remain far too many questions about eCQM feasibility and accuracy for CMS to mandate an expanded reporting requirement in the [Inpatient Quality Reporting Program].”

— The Federation of American Hospitals blamed ongoing EHR vendor and CMS technical hiccups in reporting the currently required four eCQMs as reason for not expanding to 15.

— HIMSS, saying it’s “concerned” with the CMS proposal, reminded the agency that certified EHRs aren’t required to support the 15 CQMs that CMS wants reported electronically.

AS THE THERANOS WORLD TURNS: When last we checked in with the startup, it was avoiding answering whether it had voided results pertaining to a clinical trial conducted with “secret shoppers” showing that the company’s results were only a smidge worse than that of conventional competitors.

The startup decided to tell Forbes’s Matthew Herper: it had voided some, but not all of the results underlying the clinical trial. But, the company says it conducted all of its tests on proprietary technology; some of the proprietary technology it has, however, seems to be A-OK. What that proprietary technology is...Theranos is still not telling.

SO YOU WANT LESS MONEY?: EHR vendor giant Epic Systems wants a federal court in Wisconsin to cut $220 million from its award earlier this year in an intellectual property suit against Tata Consultancy Services of India. Wisconsin law caps punitive damages at twice the compensatory damages. The request, which would trim Epic’s total award to $720 million, was part of a motion defending against a Tata challenge, Modern Healthcare’s Joe Conn reports.

DEVICE CYBERSECURITY AND THE VA: The Veterans Affairs Department and Underwriters Laboratories signed an agreement to partner on medical device cybersecurity, the two announced on Friday. “We believe that this project will positively impact the direction that manufacturers take in improving the overall security posture of medical cyber assets,” said UL’s Anura Fernando.

AMA HEAD DOUBLES DOWN ON ‘SNAKE OIL’ COMMENTS: Even though the CEO of the American Medical Association received some pushback on his comments last weekend about digital health products being “snake oil” (see today’s Tweet of the Day), James Madara told STAT News his harsh words were intentional. “It’s not just toys that people play with,” he said. Of the 1,000 health care apps that the Commonwealth Fund recently looked at, just 43 percent on Apple phones and 27 percent on Androids were likely to be useful. “I wanted to put this forward and articulate this in a way that could not be mistaken, the scale of this problem,” Madara said.

COMING THIS WEEK, SPECIAL VETERANS EDITION:

The American Telemedicine Association holds its next Capitol Hill briefing on Tuesday with a focus on the DoD, Indian Health Service and VA’s use of the technology. http://goo.gl/QyzFQU

The Senate VA Committee holds a hearing on the VA’s EHR modernization on Wednesday afternoon. http://goo.gl/T05SH7

The House Veterans Affairs Committee on Thursday will hold a hearing on a bill that would allow the VA to share certain medical records with non-VA providers. http://goo.gl/ahRZPn

On Thursday, ONC’s Standards and Policy advisory committees meets in-person in Crystal City to discuss a few recommendations, including comments on the recent MACRA proposed rule and how to measure users’ interoperability experience. https://goo.gl/VHY7JV

Also on Thursday, HELP Committee Chair Lamar Alexander speaks at the Bipartisan Policy Center about his committee’s work on a medical innovation bill. http://goo.gl/T05SH7

HELP FOR FSMB COMPACT: HHS’s Health Resources and Services Administration will give $250,000 to help enact the Federation of State Medical Boards’ interstate licensing compact. The money will help the compact become operational and provide education to doctors. Seventeen states have signed on to the compact, which allows a faster and cheaper medical license in adopting states, a goal of telemedicine advocates. More info: http://goo.gl/ovx8fw

WHAT WE’RE CLICKING:

ICYMI: New Apple iOS allows users to store health records directly on their phone: http://goo.gl/5sxbNU

Holes pop up in new online doctor-shopping tools: http://goo.gl/Va5gaH

What the FDA can learn about regulating mobile health apps from hearing aids: http://goo.gl/50Zl7E

California wants to standardize data reporting to cancer registries: http://goo.gl/SMF6Ug

Health IT comes up at AHIP meeting: http://goo.gl/vkyDv1

Tips, comments, suggestions? Send them along via email to our team: Arthur Allen ([email protected], @ArthurAllen202), David Pittman ([email protected], @David_Pittman) and Darius Tahir ([email protected], (@DariusTahir).

Follow us on Twitter Mohana Ravindranath @ravindranize



Darius Tahir @dariustahir