Disruption is the new buzzword in corporate America as old business models are blown up and new ones created on an almost daily basis with the advent of the smartphone. Few things are immune to the technology tidal wave that is sweeping across the economy and the practice of medicine is no exception. Meanwhile, government is often ill-suited to handle such disruption and often does not know what to do. Mississippi is no exception as shown in the fight over telemedicine. It is a fight that is little understood or covered by the press but may impact what healthcare options are available to Mississippians.
The practice of telemedicine is a relatively new phenomenon as private companies began providing telemedicine nationwide over the last ten years. Some offer it directly to consumers while others offer it through employers and their health insurance plans. However, one problem facing the medical profession is determining an actual definition of telemedicine. The entrenched doctors and their state medical associations want to define it as the use of video conferencing in a doctor’s office to evaluate and treat the patient. They see the technology as a supplement to the standard office visit. The forward-thinking disruptors instead argue that the use of the smartphone and modern technology can bring more health-care options directly to the patient, especially those who live in rural areas or the poor. They see the medical associations in much the same way as Billy Mitchell saw the 1920’s Army generals who said planes would never sink ships, much less aircraft carriers. The time of the day, the day of the week, or the location of the patient will mean little as he will be able to obtain a physician’s care almost immediately.
Several companies offer telemedicine services in Mississippi to subscribers and employers. The physicians are licensed in Mississippi. No mistaking their voices for those one hears when using an AT&T call center. The patient can talk to a doctor over the phone or through video conference. The patient can, gasp, use an app on a smartphone – a boon to those who live in rural areas and have poor broadband service or the poor who don’t’ have internet service at all. The use of these telemedicine tools can help employers lower their healthcare costs and deliver more on-site medical care instead of losing the employee to an office visit for the rest of the day. The app is HIPAA-compliant. The patient can take a picture of a rash or other visual symptoms and send it to the doctor. The cost is only $40 per month.
Keep in mind Mississippi suffers from a severe doctor shortage . However, the growth in telemedicine means government- and competitors- can’t wait to regulate it. It's an old story- regulators like to control and competitors like to use the government to drive out more competition. The Mississippi Board of Medical Licensure has been embroiled in a fight with telemedicine providers over the last year. Smartphone app? Forget about using one if the Board has its way. The Board wants to limit telemedicine to using videoconferencing only at a doctor’s office. So much for the poor and rural folks who suffer from the doctor shortage. Sick with the flu or a stomach bug at 3:00 AM? Sick baby on a Sunday evening and all the clinics are closed? Tough luck. Go to the ER and whip out the credit card.
Surprised at the growth of telemedicine, the Board served notice in March 2015 that is was proposing an “amendment” to its current rules on telemedicine. The proposed change would indeed force patients to use telemedicine only if they were in a doctor’s office. The telemedicine doctor would also have to sign a contract with a local primary-care physician. Got to give the local medical mafioso the vig. Telemedicine would in effect be limited in its scope and transformed into a referral service for the Mississippi Medical Association and its doctors. If the patient is in an area that is suffering from the doctor shortage, well that is just too bad.
The board also said no economic impact statement was required as well since it was merely filing an amendment. However, government agencies can’t just make up rules and change policies on the fly while wreaking havoc on entire industries and companies. They have to follow a rule book for making rules. The agency must determine how much cost and benefit will arise from a proposed rule. To put it simply, will the new rule help or hurt? The Board held a public hearing in May. The doctors, telemedicine companies, and groups such as the Mississippi Medical Association all appeared at the hearing to chip their two cents into the discussion. The Board decided to send the proposed rule back to its Telemedicine Committee for further review. However, the fight over defining telemedicine was just beginning.
The Board channeled its inner John Roberts and “clarified” its telemedicine regulations in October. The "clarification" stated that the practice of telemedicine could not include mere phone calls or use smart phone apps but instead conformed to the new rules proposed back in March. So much for the rulebook for making rules. Why go through the hassle of hearing public comments and determining how a decision by some bureaucrats affects an industry when a "clarification" will do? MMLB Staff Officer Sherry Pilgrim told a fellow employee in an internal email that telemedicine was only legal
if the examination of the patient provided the same information as if this examination were conducted face to face. Thus audio only or filling out a health inquiry is not acceptable for the practice of telemedicine in Mississippi. An interviewing licensed health care professional who is on-site with the patient may convey this information to the physician practicing telemedicine.
The telemedicine providers fought back and demanded the Board perform a cost and benefit analysis as required by law. The Board acceded to the request and assigned the task to a committee of doctors. The Board still has not produced an economic impact statement even though Board members said in emails that the statement would be available by January.
It is perhaps no coincidence that the Board’s position on telemedicine just happens to match the telemedicine program offered by UMMC. Dr. Kristi Henderson founded the UMMC telemedicine program in 2003. The program only uses video conferencing between physicians. The patient must be in a doctor’s office before it can be used. There are no smartphone apps and it is not available 24/7 to patients. It is focused on the use of telemedicine by doctors to work with other doctors while the disruptors are focused on providing telemedicine directly to the patients. Keep in mind there is nothing stopping a local medical clinic or hospital from offering its own telemedicine service directly to patients. A local health care provider can hire doctors, create an app, and offer telemedicine directly to patients as UMMC's competitors do. Competition can indeed be a wonderful thing.
It should be noted that UMMC physician Dr. Claude Brunson is the chairman of the Board’s telemedicine committee. Make no mistake, UMMC is a direct competitor of the telemedicine providers. It invested heavily in its telemedicine program and obtained several grants for the program as well. In other words, it has a vested interest in the outcome of this fight. The Mississippi Medical Association supports the Medical Board's position as well. It is an interesting battle to watch in one respect. UMMC created a beautiful telemedicine program that is the envy of many states but it is getting leapfrogged by the disruptors while it is receiving its accolades.
However, UMMC, the Mississippi Board of Medical Licensure, and the Mississippi Medical Association may not like what the courts have to say about their efforts to constrict the practice of telemedicine in Mississippi. A federal judge ruled in Texas that Teladoc could practice its brand of telemedicine after medical licensing board in Texas imposed similar restrictions. The court ruled that the presence of competitors on the board meant that the board was subject to the antitrust laws. The court cited a 2013 U.S. Supreme Court case that held the North Carolina Board of Dental Examiners were subject to antitrust laws when a "controlling number of the decision makers on a state licensing board are active participants in the occupation the board regulates." The board members of the Mississippi Board of Medical Licensure are all physicians and probably face the same antitrust issue in court as their Texas counterparts faced. There is not doubt that Teladoc will fight the Board in federal court if the Board has its way.
However, the fight has now moved from Lakeland Drive to downtown at the state capitol. Several telemedicine bills were introduced in the current legislative session. One bill is alive and trying to survive political dodgeball. HB #1187 passed the House and awaits referral in the Senate. The bill is patient-friendly as there is no requirement for the patient to travel to a doctor's office. The patient can use his smartphone app as well as talk to a doctor either on the phone or through videoconferencing. The doctor must be licensed to practice medicine in Mississippi and can be disciplined by the Board if he violates the law.
The fact that Mississippi is in last place when it comes to health care is no great secret. The poor and rural character of much of the state means too many people lack access to basic health care. However, health care access is often limited due to anti-competitive laws that shrink the supply of health care providers while driving up the cost. Certificate of need laws restrict the supply of hospitals and medical services. Other laws restrict the use of nurse practitioners and physician's assistants. The fight over telemedicine is a fight over whether telemedicine should be used to bring health care to the patients who need it most at an affordable price. The good ole boy network is still alive and well in the 21st century. The disruptors seek to break up the good ole boy rules while government tries to adapt to the 21st century and modern technology. Which way will Mississippi go?
*Dr. Henderson recently left UMMC for a position with Seton Healthcare in Texas.