Technology has transformed the ways we all communicate. Perhaps nowhere has this transformation been felt more dramatically than in the healthcare industry. Healthcare providers are under constant pressure to adapt to the public’s desire to have greater access to medical professionals and services through the convenience of technology. 

Although the benefits of delivering certain medical care by electronic means are widely acknowledged, there is no agreement on how such medical treatment can or should be provided. Moreover, because the delivery of professional medical services is regulated through state licensure, the availability of telemedicine services is largely dependent upon the rules and regulations adopted by state licensing boards. Rulings from several significant cases in 2015 illustrate the difficult challenges faced by the courts in addressing issues related to telemedicine. 

Iowa Abortion Procedures

Medication-induced abortions have been performed in Iowa by Planned Parenthood since 2008 both in person (where the patient is physically present with a trained staff member and physician) and in telemedicine settings (where the patient is physically present with a trained staff member, but the physician is located in a different geographical location and communicates with the patient through an authorized telemedicine portal). 

In both settings, a trained staff member obtains the patient’s medical history, vital signs and blood for testing, and performs an ultrasound to ascertain the length of the pregnancy and any medical condition that would make use of the medication inadvisable. The physician then reviews that information and, assuming the procedure is not contraindicated, informs the patient about the medication, answers questions, obtains consent and provides the medication (which is taken orally). The staff member and/or physician then observes the patient taking the medication. 

In August 2013, the Iowa Board of Medicine voted to adopt a rule requiring physicians who prescribe or administer abortion-inducing drugs to perform a physical examination and be physically present with their patients when such drugs are provided. Planned Parenthood challenged this rule by filing a lawsuit in state court and in August 2014, the District Court for Polk County, Iowa, upheld the medical board’s position. That decision was appealed, and in June 2015, the Iowa Supreme Court reversed, finding that the rule operated as an unconstitutional limitation upon a woman’s right to terminate a pregnancy. 

Among the arguments advanced, the medical board argued that the physical presence of the physician was needed to protect the health and safety of patients. Planned Parenthood argued that the rule was actually a means of limiting access to such services. The Iowa Supreme Court found, among other things, that an increasing number of medical procedures are being successfully performed via telemedicine and that the recognized standard of care does not call for a physical examination of the patient. In the court’s view, the medically necessary information was contained in the patient history, vital signs, blood test results and ultrasound – which can be equally accessed by the physician, whether in person or connected remotely. 

Texas Prescription Drugs

In April 2015, the Texas Board of Medicine adopted regulations requiring a face-to-face examination by a physician prior to the issuance of a prescription, specifically ruling that the necessary physician/patient relationship cannot be established through questions and answers exchanged through email, texting, video chat or telephone. These regulations were challenged by Teladoc, a Dallas-based company claiming that its providers are generally available 24/7, 365 days a year, at a much lower cost to the patient than traditional office visits. 

Unlike Planned Parenthood’s state court challenge in Iowa, Teladoc filed its lawsuit in federal court in the United States District Court for the Western District of Texas (Austin Division). Teladoc sought an injunction preventing the regulations from going into effect and sought to challenge the regulations on the basis that they violate federal antitrust laws, arguing that the face-to-face requirement infringes upon Teladoc’s ability to compete. In addition, Teladoc argued that its services provided medical care to patients in underserved rural areas, while the board countered that there were deficiencies in care provided through telephone-only diagnoses made by Teladoc physicians. 

Following a hearing in May, the court granted Teladoc’s request for a preliminary injunction, thereby preventing the regulations from going into effect until a final decision is reached. In granting the preliminary injunction, the court found, among other things, that all physicians licensed in Texas, including Teladoc’s physicians, were bound by the same standard of care and ethical rules and that such telephone-only diagnoses were no different than typical on-call physician communications. Since then, the board has sought to have the case dismissed. Those arguments were denied by the court in December, which the board plans to appeal. 

Satisfying Regulatory Requirements

As these cases illustrate, the rules and regulations adopted by state licensing boards pertaining to telemedicine (and many other issues) can differ greatly among jurisdictions. These regulatory actions can be challenged in the courts, and as the cases demonstrate, state licensing boards cannot rely on their rulemaking powers to limit telemedicine offerings without a significant objective basis for doing so. 

The cases also highlight the fact that the issues facing courts can be difficult and unpredictable. What is clear is that – so long as the availability of telemedicine in a particular state is controlled in large part by the licensure requirements imposed by that state’s licensing board – any licensed healthcare providers who desire to participate in the delivery of healthcare services via telemedicine must ensure that in fulfilling all necessary legal requirements, they have acquainted themselves with and fully understand the rules and regulations pertaining to such telemedicine services that are established by such licensing boards. 

John Ivins Jr., is a partner and leader of the healthcare practice at Hirschler Fleischer Richmond, Va. Ivins routinely represents hospitals and healthcare systems, advising on various operational, compliance and staffing issues, including peer review, credentialing and handling fair hearings. He also represents physicians and medical practices on a variety of privacy, operational and licensing matters. He may be reached at (804) 771-9587 or by email at This e-mail address is being protected from spambots. You need JavaScript enabled to view it.

Jacqueline Hedblom, is a partner and member of the healthcare practice at Hirschler Fleischer, Richmond, Va. Her practice focuses on the healthcare industry and includes representation of hospitals and healthcare organizations in peer review matters, fair hearings, employment matters and other disputes. Hedblom also represents physicians and medical practices in a variety of matters. She may be reached at (804) 771-9558 or by email at This e-mail address is being protected from spambots. You need JavaScript enabled to view it. .

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