The Growing Influence of The Federal Trade Commission in Telehealth Policy

09/21/2016

Recently, both the Department of Justice (DOJ) and the Federal Trade Commission (FTC) filed amicus briefs with the US Court of Appeals for Fifth Circuit supporting Teladoc’s case against the Texas Medical Board (TMB). Teladoc has been fighting two TMB regulations: a 2010 regulation that puts restrictions on video consultations and a 2015 regulation that would require face-to-face contact before a prescription can be made. Teladoc has based its case on the Supreme Court case of North Carolina State Board of Dental Examiners v. FTC (135 S. Cut. 1101 (2015)). In that case, the Supreme Court ruled that a board made up of “active market participants” must be actively supervised by the state in order to avoid actions that may be anti-competitive.  A preliminary injunction was issued on the 2015 rule.  TMB made a motion to dismiss the suit arguing there is active supervision. That motion was denied and TMB has subsequently made this current appeal.

The FTC’s principal mission is to promote consumer protection and eliminate and prevent anti-competitive business practices.  On these grounds, the FTC has now provided its input in four instances involving state medical boards’ ability to regulate its professionals, including this most recent amicus brief filing in the Texas case.  The amicus brief the FTC filed centers on two reasons why the TMB’s motion should be dismissed: the court lacks jurisdiction in the case and the TMB has failed to show it has “active supervision.” However, what is interesting to note is what the FTC said in their very first footnote: “FTC staff is investigating the underlying actions that are the subject of this appeal…” Had Teladoc not filed a suit against the TMB, the FTC may have launched its own investigation anyway. This is another action by the FTC in the last few years that signals growing activity by that agency in telehealth that could have enormous impact on future telehealth policy, specifically as to how a medical and other health professional boards treat it. 

CCHP first wrote about the first significant FTC action with the aforementioned North Carolina Dental Board Examiners case. While not a telehealth specific case, the impact it could have on not only medical boards, but any professional licensing board would definitely affect telehealth as well. This has proven to be true as it is the basis of Teladoc’s case against the TMB.  The second instance came this year when the FTC wrote a letter of support toSB 74 an Alaskan State Bill. In that letter of support, the FTC raised concerns about the medical board imposing requirements upon telehealth that were not justified when drafting guidelines on the use of telehealth. 

CCHP has seen an increase of not only medical boards, but other health professional boards that have been proposing and implementing guidelines and regulations on how health professionals should utilize telehealth in their practice.  State occupational and physical therapy boards have been a prime example of this trend.  In response to draft regulations proposed by the Delaware Occupational Therapy Board, the FTC submitted comments on Aug. 6, 2016. Overall, the FTC viewed the proposed regulations favorably though it did raise concerns regarding supervision of occupational therapist assistants (OTAs), including their role in telehealth evaluations and the determination of whether to use telehealth. The FTC also indicate the areas it appears to be focusing their attention on, signaling their interest in “scope of practice and supervision provisions that unnecessarily limit services a practitioner may provide or unnecessarily restrict a particular practitioner from competing in the market”. The FTC comments also cite a 2004 report, where federal antitrust agencies evaluated the competitive effects of state restrictions on interstate practice of telemedicine, which found that “when used properly, telemedicine has considerable promise as a mechanism to broaden access, lower costs and improve health care quality.”  

Will the FTC be actively looking at these guidelines and perhaps find some wanting? If so, not only could boards potentially be required to make significant changes, but depending on how a situation plays out, state legislatures may also be required to take some action. Or a similar situation to North Carolina Board of Dental Examiners may occur and it evolves into a case that needs to be decided by the Supreme Court.

These actions by the FTC show a pattern of the Agency’s growing concern about the powers and actions of professional health licensing boards and their regulations and policies related to telehealth.  If the FTC continues along this trajectory, will they find additional restrictions and limitations medical and other professional boards place on telehealth to be anti-competitive and therefore illegal? Could they also view licensing restrictions in that same manner at some point?  The FTC is definitely an agency to watch as an influencer of telehealth policy. To stay abreast of developments, continue to get updates from CCHP!