Tennessee’s Proposed Telemedicine Regulations Would Impede Behavioral Health Care

Earlier this month, Tennessee enacted a state-wide parity law for private insurance coverage of telehealth. This important legislation added Tennessee to the list of 21 states with required private payer reimbursement for telehealth. It received bi-partisan support and was a positive step forward for improving access to behavioral health care in Tennessee.

However, as this forward-thinking telehealth legislation broke over the horizon, there was a shadow not far behind.  The Tennessee Board of Medical Examiner’s has proposed a set of telemedicine practice guidelines that would significantly hinder the growth and spread of telemedicine.

States across the country are working to nurture and expand telemedicine because of its ability to increase access to needed care.

Despite Tennessee’s recent telehealth reimbursement success, the Tennessee Board of Medical Examiner’s restrictive proposed rules and regulations would stifle telemedicine within the state considerably.

As a child and adolescent psychiatrist with over 15 years of telepsychiatry experience and an advocate for the proper adoption of telemedicine, I’d like to shed some light on how these rules could affect care, especially within the realm of behavioral health.

1)  Section 6a: Requiring a “prior, direct face-to-face examination relevant to the specialty of medicine and to the reason for the referral or consultation by a licensed health care provider in Tennessee.”

While an actual, in-person initial physical evaluation might be necessary for certain disciplines, this is not always the case for every discipline. For example, ample clinical research has proved that a valid physician-patient relationship can be established via televideo for psychiatric care. My own 15 years of experience have substantiated this research. Via telepsychiatry, I have successfully served consumers who struggle with essentially every behavioral health concern imaginable in nearly every setting. For psychiatry, understanding the biopsychosocial aspects of a consumer is not determined by the location of the provider nor the medium used to talk and interact. Technology is merely a means for establishing a connection. A trained telepsychiatrist can adapt his approach to be effective via videoconferencing. By using empathic listening, spending time with a consumer, and communicating with family members and other caregivers, a telepsychiatrists can effectively serve a consumer.

Regardless of the discipline, in-person interaction does not ensure good clinical care; the knowledge and skill of the provider is what matters. I strongly recommend the board reevaluating this statement so that there is the potential for discipline-specific flexibility.

Additionally, I ask the board to carefully consider the use of the term “face-to-face” within their regulations. The use of real-time, direct videoconferencing to connect a provider and consumer is widely considered “face-to-face” and acceptable means for establishing a patient-provider relationship, particularly within behavioral health care. According to the 2014 Federal State Medical Board’s (FSMB) Model Policy for the Appropriate Use of Telemedicine Technologies in the Practice of Medicine, “Initial physician-patient relationships may be established using telemedicine technologies, provided the standard of care is met.”

2) Section 6a: “A facilitator must be present at the time of the transmission of information to the physician at the remote location.”

The second portion of section 6a also raises a number of questions. Is this stating that a facilitator must remain in the same room as a consumer throughout a telemedicine session? If so, this will restrict some applications of telemedicine for certain disciplines and create an unnecessary logistical and financial burden on telemedicine sites.

For example, I serve a number of outpatient behavioral health consumers via telepsychiatry, and while a facilitator will set up and end our televideo sessions, there is generally no need for a facilitator to remain in the room for the entirety of routine appointments.

If the concern is with verifying the accuracy of certain self-reported information, I challenge the board to again think more flexibly. There are certain instances where a patient’s self-reported information can be verified by other sources beyond an onsite facilitator. For example, I can verify whether a consumer has been prescribed controlled substances from another source by checking online databases.

While, I absolutely support collaboration between remote and onsite providers, when it comes to establishing broad-based restrictions, I recommend that the board leave decisions regarding what should be validated or observed by a third party facilitator to the discretion of the licensed professional conducting the service.

3) Section 6b: “The patient must be seen in person by the physician or a licensed health care provider (MD, DO, APN, PA) working under approved office protocols at least every fourth encounter or annually, whichever comes first.” 

If this section is requiring that the remote telehealth provider see the consumer in person every four appointments or once a year, then Tennessee is sincerely missing the boat on the essence of telemedicine, which is to increase access to care by making available providers who would be otherwise inaccessible.

If this clause is intended to require that some sort of clinician should see a consumer every four appointments, I ask the board to consider what is commonplace for traditional in-person care, particularly for behavioral health. Do consumers have to go check in with a primary care provider after three in-person appointments with a psychiatrist? Why would telemedicine be acceptable for three appointments in a row, but not four?  Why should telemedicine, if delivered appropriately, be held to a different standard?

While telemedicine should never be delivered within a vacuum and collaboration and communication with in-person caregivers should always occur, adopting a policy with a set frequency of in-person appointments would be a regrettable restriction.

I suggest a revision more in line with this line from the FSMB’s model policy, which states that, the “remote physician determines whether or not the condition being diagnosed and/or treated is appropriate for a telemedicine encounter.”

4) Section 9b: – “In no event shall a physician prescribe Schedule II controlled substances pursuant to an electronically-mediated encounter.”

This is a heavy restriction that would drastically reduce the power of telemedicine, particularly for behavioral health care.

I share a cautious and considered approach to prescribing all schedule II drugs and understand the potential for abuse of many of these drugs by unscrupulous prescribers and insidious consumers. I fully believe that are certain schedule II drugs that should not be prescribed through certain types of telemedicine encounters and believe that some regulation in this area is appropriate. However, there are other schedule II drugs that should be prescribed through appropriate telemedicine encounters.

For instance, the prescription of stimulants is the bedrock of our work as child and adolescent psychiatrists, and without the ability to prescribed stimulants, the efficacy of our work is severely challenged. Given the severe shortage of child and adolescent psychiatrists and the proven efficacy of telepsychiatry for children, this restriction would be an unnecessary and major hindrance to caring for Tennessee’s kids.

I suggest a revision that states that a direct physical examination requirement may be waived in certain situations. For instance, where in-person care does not traditionally require a direct physical examination, but rather merits a review of recent history and physical examination documents, as is often the case with behavioral health services.

5) Section 2: Stopping the issue of “telemedicine licenses” and requiring all providers to apply for a full TN licensure.

The concept of physician licensure is a hot topic in telemedicine circles and a number of different groups are taking stances on how to best address this issue and allow for less restrictive licensure regulations for telemedicine. The FSMB’s draft licensure compact with reciprocity is one example of what I view as a step in the right direction regarding physician licensure.

At this point in time, I do believe it makes sense for providers to have full, unrestricted medical licenses in each state where they are practicing. However, I think that it is important to recognize that the process for obtaining full licensure from most state medical boards is growing increasingly outdated and unnecessarily redundant. For instance, there is an excessive burden on applicants and state boards to verify information that has been validated time and time again by trusted sources.

Thus, I recommend that any steps the board takes to modify its licensure processing attempts to be forward-thinking and progressive.

Stepping back, I appreciate the Tennessee Board of Medical Examiners efforts to make sure that telemedicine is delivered appropriately. By incorporating more flexible language and perhaps adopting some of the standards defined in the Federal State Medical Board’s Model Policy for the Appropriate Use of Telemedicine Technologies in the Practice of Medicine the state will be able to best leverage the potential of this medium of care.

Telemedicine gives consumers unprecedented access to care and providers, and I am enthused to see how Tennessee will benefit from its further adoption.


Dr. Jim Varrell

jamesvarrel1Jim Varrell, M.D. is American Board certified in Psychiatry and Neurology, and certified in American Academy of Child and Adolescent Psychiatry with a specialty in autism. Dr. Varrell has been at the forefront of telepsychiatry across the nation and continues to educate the medical community regarding the benefits of telepsychiatry through various presentations and forums where he has served as a panelist and presenter. Dr. Varrell preformed the nation’s first involuntary psychiatric commitment via a televideo unit in 1999. Today, Dr. Varrell still regularly performs telepsychiatry evaluations and manages a staff of telepsychiatrists who see and treat consumers in 16 states. Follow Dr. Varrell on Twitter @InSightTelepsyc

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