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  • Telehealth and Court Cases Continued: Recent Ruling Additionally Highlights Legal Implications Relevant to Telehealth Policy

    Center for Connected Health
    recent court decision once again highlights the ability for legal rulings to impact telehealth policy, consistent with the focus of CCHP’s recent Telehealth and Court Cases webinar series, and raises interesting policy questions that have potentially far-reaching implications. Last month in Hines v. Pardue, the U.S. Court of Appeals for the 5th Circuit found in favor of Ronald Hines, a Doctor of Veterinary Medicine, after an over-a-decade-long court battle. At issue was whether Dr. Hines was violating Texas law requiring an in-person visit prior to providing medical advice over the internet, or whether his communications were protected under the First Amendment of the U.S. Constitution. The court, which decided in favor of Dr. Hines, stated in its September decision that the State of Texas was directly regulating Dr. Hines’ speech and that the in-person exam requirement failed to survive even intermediate scrutiny. 
     
    After Dr. Hines launched a website to share veterinary care articles around 2002, readers across the United States began emailing him for animal-care advice, to which he responded from his home in Texas. Dr. Hines requested and reviewed medical records prior to responding and if he was unable to receive sufficient information he referred readers to local veterinarians. Nevertheless, in 2012 the Texas State Board of Veterinary Medical Examiners informed Dr. Hines that he was in violation of Texas law requiring veterinarians to establish a veterinarian-client-patient relationship (VCPR) before engaging in the practice of veterinary medicine. The law states that the relationship can only be established with sufficient knowledge of the animal, which can only be met in-person, and may not be established solely by telephone or electronic means. After being reprimanded and fined by the state, Dr. Hines sued stating that the physical-examination requirement violated his First Amendment rights. In discussing the history of Dr. Hines’ case and other relevant case decisions, the Court focused in on two primary points: one, that Texas law allows telemedicine without a face-to-face exam to establish a physician-patient relationship, but not a VCPR; and two, no one had ever complained of alleged harm from Dr. Hines’ emailed pet-care advice. Therefore, the Court determined that the State was unable to show the harms it sought to address in enforcing the in-person requirement and found that the burden on Dr. Hines’ speech did not in fact advance the State’s interest in animal welfare.
     
    Similar to Texas, many states allow the establishment of a provider-patient relationship via telehealth (see CCHP’s online prescribing website for more information by state), however many states do place additional requirements and restrictions on the ability to establish a relationship through different telehealth modalities. Many of the arguments that arise in Hines v. Pardue may apply more generally across the telehealth landscape. Some may agree that in-person exams can be helpful, but they are not always necessary. As was the case with Hines, expert testimony couldn’t identify any evidence of harm caused by telemedicine without a prior physical examination. While the case may have been specific to veterinary care, it raises important policy considerations that are relevant more broadly.
     
    Other recent cases also have the potential to shape the use of telehealth and frame policy discussions, which was the topic of CCHP’s recently concluded 2024 Webinar Series. In particular, for CCHP’s August Loper Bright/Chevron webinar, a panel of legal experts discussed the Loper Bright decision. In June 2024, the Supreme Court decided in favor of the plaintiffs in Loper Bright Enterprises v. Raimondo overturning what was known as the “Chevron Doctrine” named for the 1984 Supreme Court Case Chevron USA, Inc. v. Natural Resources Defense Council, Inc. In the Chevron Doctrine if a court concluded a statute was silent or ambiguous, the court would defer to an agency’s interpretation of the statute. Loper Bright puts that authority back in the courts to resolve that ambiguity. The panelists discussed how the case may impact telehealth policy, as did CCHP’s Newsletter (dated August 27, 2024), which looked at how Congress has typically deferred some policy details to regulating agencies as the implementers and enforcers of the law. With Loper Bright, that ability to interpret vague or ambiguous statutory language shifts to the courts, appearing to undercut agencies. However, more explicit statutory deference may be a way of mitigating the overturning of Chevron. In thinking about federal telehealth policy and administrative regulations in relation to legislative statutes and judicial interpretations, it is also important to understand where telehealth policy currently falls within each of these branches – see CCHP’s Federal Telehealth Policy Examples Across the Branches graphic and the webinar recording for additional information.
     
    CCHP also conducted a Cross-State Licensure Court Cases Webinar on October 3, 2024, as the second half of its webinar series covering two other ongoing cases—MacDonald et al v. Sabando (New Jersey, December 2023) and McBride et al v. Hawkins (California, May 2024)—that challenge the constitutionality of requiring providers licensed in one state to obtain a separate license for telehealth interactions with patients in another state. One of the primary arguments in both cases, similar to the aforementioned Hines v. Pardue case, centers on the interaction between laws limiting treatment discussions via telehealth and First Amendment right to speech protections. The licensure lawsuits additionally assert state licensing requirements are unconstitutional as they also violate the Commerce Clause, because Congress regulates and impacts interstate commerce, and the Privileges and Immunities Clause, because state licensure laws unduly burden out-of-state providers and their patients. The session also explored the impact of existing licensure laws on providers and patients, various policy approaches being adopted and considered in this regard, and the potential policy implications if these cases succeed. Licensure impacts as a result of Dobbs v. Jackson, the case that overturned Roe v. Wade, were additionally discussed in terms of understanding the role of the state licensure structure in cross-state practice and telehealth. For more interesting insights on licensure policy and legal interactions, view the full webinar recording.
     
    As each of these cases and CCHP’s recent webinars showcase, the interaction between court rulings and telehealth policy will likely continue to grow as legal implications are better understood and addressed across the telehealth policy landscape. Stay tuned to CCHP for further updates on legal, legislative, and regulatory telehealth developments.

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