Free speech case rejected but telemedicine debate remains

AVMA to create model standards for veterinarians

December 8, 2015 (published)
By Jennifer Fiala

The Texas veterinarian whose license was suspended in 2013 for providing online consultations to pet owners via the Internet says he's disappointed the U.S. Supreme Court refused last month to consider free speech elements of his case.

Justices declined on Nov. 30 to hear a First Amendment challenge in Ronald S. Hines, Doctor of Veterinary Medicine v. Bud E. Alldredge Jr., Doctor of Veterinary Medicine, et al. Attorneys for Hines alleged that Texas regulators stifled the veterinarian's speech when they suspended his license for giving advice to pet owners via the Internet without first establishing a valid VCPR, or veterinarian-client-patient relationship. 

The high court's rejection of the Hines case upholds a March 2015 ruling by Fifth U.S. Circuit Court of Appeals that supported the TBVME's crackdown on the veterinarian's online practice. 

Regulators in most states consider a physical examination to be a condition of developing a client-patient-relationship — a policy that's common in both human and veterinary medicine but being challenged as doctors and patients head online to exchange information. 
Those who support requiring a physical examination believe it is necessary to protect patients, particularly in animal health, because pets are unable to verbally communicate. 

Dr. William Folger, a Houston-based feline specialist and president of the Society for Veterinary Medical Ethics, said as much during an interview last May with the VIN News Service.  

"Our patients cannot speak to us; we cannot have a Skype interview," he said regarding Hines' case. "Someone can Skype me, but they're just going to sit there at the keyboard. (Animals) can't answer questions, which makes that kind of interview process a moot point." 

Hines contends that the true purpose of such regulations is to protect brick-and-mortar practices from cheaper, faster online services. The 72-year-old of Brownsville, Texas, says he started the website in 2012, after a spinal injury forced him to leave traditional practice. 

Hines, who says he netted less than $3,000 a year, charged $58 for advice and often waived the fee. He talked to clients but says he never prescribed a medication or made a diagnosis, hence his free speech argument. 

Hines' attorney, Matt Miller of the public-interest law firm Institute for Justice, noted that although the Supreme Court was to consider just a portion of the lawsuit — its free speech component — the bulk of the case was being adjudicated at the trial court level

"The Supreme Court's decision has effectively ended the case," Miller said by email. 

Hines lamented that he'll not hear justices debate his case. 

"I'll never know what would have happened," he stated. "If they'd have gone with me, they'd have opened up a lot of these regulations. I supposed the court didn't want to go there … not for veterinarians. But at some point, they'll have to do this for human medicine." 

Digital health care revolution? 

Hines' prediction could come to fruition. 

Dallas-based Teladoc Inc., an online physician consultation service, is waging a battle with the Texas Medical Board, which licenses and regulates physicians. The case looks a lot like Hines' fight with Texas veterinary regulators, apart from some major distinctions. 

The antitrust case argues free-trade, not free-speech violations. What's more, Teledoc — backed by health insurance companies such as Aetna — has deep pockets to pay for lobbyists and prominence, with former Senate Majority Leader Bill Frist, now a Teledoc board member, lauding telemedicine as a "game-changer" for human health care.  

Lawyers for Teledoc are arguing that state regulations that bar doctors from providing advice over the Internet and telephone violate the Sherman Antitrust Act.  

In May, U.S. District Judge Robert Pitman ordered a temporary injunction against new regulations that would have jeopardized Teladoc, citing credibility in the company's assertion that the Texas Medical Board was behaving anti-competitively. Regulators consider Teladoc's practice of prescribing drugs to patients from electronic-only consultations to be prohibited. 

Reflecting on his own case, Hines said: "Perhaps if we'd gone after the free trade argument and not free speech, we would have been successful. I assume this issue with Teledoc will be going right back up to the Supreme Court." 

AVMA: policy needed as telemedicine spreads

Photo courtesy of Vet24seven
Telemedicine app Vet24seven prompts veterinarians who communicate with clients via the company's virtual platform to determine whether they have a valid veterinary-client-patient-relationship before responding. "We accommodate all regulatory requirements," said Dr. Ed Blach, the company's co-founder. "Our objective is to put the decision-making in the hands of the veterinarian."

Officials with the American Veterinary Medical Association want the profession — not the judicial system — to determine how to regulate telemedicine.

In September, AVMA leaders enlisted the newly formed AVMA Practice Advisory Panel to review telemedicine for the association's model practice act, owing to Hines' case and the emergence of companies offering virtual services. One of them is the mobile app Vet24seven.

Dr. Ed Blach, a veterinarian and Vet24Seven co-founder, says he's eyed the Hines case with interest. Vet24seven, he said, is not about circumventing any VCPR stipulation that requires physical visits. Rather, he wants to build on them by providing an avenue for practitioners and their clients to connect remotely for followups and consultations.

"What we know is that greater engagement helps generate client visits and remote consults," he said. "Every person touches their mobile device more than 150 times per day. We as a profession have not made ourselves very accessible via modern communications methods, so we provided a system that veterinarians can use to serve their clients."

On top of providing a communications platform, Vet24seven started the social network, where pet owners can submit general questions for veterinarians. When asked how this differs from Hines' engagement with clients, Blach responded, "We are very aware of the regulations." 

"We want to get this right," he said. "Our philosophy is we want to activate consumer demand by making it easy to connect with their veterinarian when they have a need."

Veterinarians are expected to practice with integrity in traditional clinical settings, Blach said. The same is expected on the Vet24seven platform, where veterinarians are responsible for abiding by VCPR regulations and other practice standards in the states in which they're licensed.

"When I was in practice and was asked to do something by a client that didn’t meet my ethics or guidelines, I simply said I’m not able to do that," Blach said, adding that as a company, "We screen, we make sure the integrity is there. Our integrity is at stake as well."

The AVMA's panel, charged with protecting and promoting the profession by strategically identifying and processing important practice and business issues, held its first meeting on Oct. 2, with telemedine on the agenda. 

The group is "gathering as much information as it can and will soon issue a report upon its deliberation," said Dr. Mark Helfat, a member of the AVMA Board of Directors and private practitioner from New Jersey. By email, he called the guidelines a "must have." 

"Telemedicine appears to have filtered down from our physician colleagues and now is challenging the veterinary profession on many fronts," he said.

It's unknown whether the House of Delegates, the AVMA's main policymaking body, will discuss telemedicine when the group gathers in January in Chicago.

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