Transcripts For CSPAN3 Discussion On Online Medical Care Services 20240622

Something. Thank you. Thank you so much for the discussion. Im show jen from china daily. Speaking of asia and china, i want to ask what china and the u. S. Could do to cooperate in terms of Scientific Research and manufacturing and also the promotion of the new technology of Energy Sources and what is the role of ecp in this cooperation. And also, how they effect the economy, the politics an the bilateral relationship between china and the u. S. Thank you. Steve. [ laughter ] that is a big question. So i will take a stab at this but then im handing it straight over to you. All right. Only because your right inside of the game and this is that the cooperation, in my own view, will happen after the innovation. The competition is too stiff, the stakes of winning are too high for any of the countries to cooperate with each other. You are not going to have, for example, japan handing over its innovations to china, to south korea or south korea doing so with china or the United States doing so with china either. Look at what happened with the lithium ion phosphate. This is john good enough, the inventor of everybody here who has a smartphone in their hands or in their pockets, he invented the nervous system of those batteries in those smartphones. And he invented another chemistry. And this went on to be reinvented by a bunch of other people, including a Company Called a123, is that built the factories to make the batteries in china resulting in 30 or 40 other companies very, very quickly in china suddenly having exactly the same chemistry, creating competition for a123. So for these reasons, i cannot imagine there being very, very close cooperation. At that competitive stage, where there can be collaboration or cooperation is in the rollout of them. Because both countries have very, very high stakes. China, for example, has a premier policy. China is right on the vanguard of cleaning up its air. And this is the stage at which you can have the United States and china cooperating. Thanks for the question. That is a very big question you are asking and a loot of people are trying to answer a lot of people are trying to answer that question right now, in the government and elsewhere in the world of business. I guess i would start by saying we all have to recognize, including our friends on capitol hill, that we live in a world economic. We increasingly are living in a more and more transparent world economy. Even with the competition that steve is talking about and were all well aware of. And ill give a couple of examples of that. In the battery world, a123 came out of m. I. T. And they have a problem about three years ago that resulted in a 50 million recall it. Was a small company, but it did go public. Almost a billion dollar ipo, i dont remember the year, Something Like five years ago or so. And that one quality problem, because it had one product, bankrupted them. There was a 50 or 70 million recall. So they were split apart. The defense part of the United States, the d. O. D. Contract work went through nava tsa but the rest went through wong sean, the christians company. And now the plant is operating at full capacity in michigan, sending every one of the cells or most of the cells to china. Now look at it in the reverse. I think i finally converted over from android telephone to i was a very stalwart person, not wanting to go to apple products, sorry if you are watching out there and my kids use apple and it was much easier to communicate with them. Well guess where they are made . They are made in china. And we love to premier apple as an example of how an American Company operates. That is built on the backs of folks manufacturing much of the technology, almost all of it, in china. Think about the two examples. Are either one of those a bad thing . The problem is im not a politician, im a scientist and the way i would answer the question is yes, there is room to collaborate in the research with other scientists from around the world. It is a tradition going on for decades if not centuries. And steve is right, the difficult part and the exciting part of the collaboration, can you collaboration beyond the Scientific Research and i think you can in a123, baking battery cells in the u. S. To ship to china and apple making product in china to ship to the u. S. I think weve run out of time. Thanks a lot for coming. [ applause ] thank you, steve and jeff, for such a wonderful presentation and thanks to everybody here for all of your excellent questions. I do want to tell you that at least we have planned our second of our Technology Series on april 24th. Peter dean, who is our senior fellow will be part of that, and well talk about the future of renewables from the view point of the private sector and where they see things going over the next months and years so i hope youll be able to attend that. Well be sending out notices of that in the next week or so. So again, thank you very much for coming. And thank you, steve. Republican president ial candidate donald trump will be in New Hampshire tonight and well cover a live town hall hes olding at 7 10 p. M. Eastern time in hampton. This weekend on the cspan networks, politics, books and American History. On cspan, live from the iowa state fair, president ial candidates speak at the candidate soap box. Beginning on saturday at noon well hear from Rick Santorum and democrats Lincoln Chaffee and bernie sanders. And sunday afternoon more live coverage with republican candidates, ben carson at 5 00 followed by george pataki. On cspan 2 on saturday night, Claire Mccaskill on her life and political career. And sunday morning at 10 30, Danesh Desouza looks at Campaign Finance laws. On American History tv on cspan 10 00 a. M. With president ial candidates visiting the iowa state fair, well learn about the tradition and the stop on the road to the white house as we look back at the 2008 president ial race. And saturday evening at 6 00 on the civil war, hist orab and author john core steen on the battle of mobile bay, the resulting victory and the closing of one of the confederacys last major ports. Get the full schedule at cspan. Org. Legal and health care analysts look at the emerging industry of Online Medical care known as telemedicine or telehealth. They talk about regulatory barriers including licensing requirements and the role of state boards and regulation and coverage and reimbursement of services and policy concerns. Also a case involving the First Amendment and free speech by an attorney appealing to the u. S. Supreme court on behalf of his client, a veterinarian who was fined and license suspended by a texas state board for providing advice through his website. Good afternoon, my name is simon lester. Im a trade policy analyst for here at the cato institute. Thank you all for coming out today. Thanks for those of you watching on the internet and i understand it cspan 2. We have what i think will be an interesting and informative policy forum on removing online barriers to medical care. This is sometimes referred to as telemedicine or telehealth. I expect to learn a lot from this forum myself. Ive written only about a narrow aspect of the issue. Ive written about how International Trade agreements address it. I was following the canada e. U. Trade negotiations and i saw that german has excluded telemedicine from the liberalization. They said we will not liberalize in this area. As a free trader this offended me and annoyed me and said in trade negotiations government should try to have cross border trade in medical services. But i realize if i were to hold a policy forum on the trade aspect it would be hard to fill my office let alone this auditorium and i decided to talk about telemedicine and invite experts and those are gentlemen on the left and right of me. So i think well benefit from their knowledge of the issue. This is a new topic for many so i think it is best to start with the basics and get into the nuances as we go along. So here is the issue in the most basic form. For most people medical care is still something that takes place in a Doctors Office or in a hospital. Weve all had this experience. You go down to the Doctors Office and you wait, they have these 1970s era paper forms and you fill those out and wait some more and they take you to another room and wait again. It is pretty annoying. But if instead of that you could just take out your smartphone and place a skype call to a doctor, go do some other things, get some lunch, go to a policy forum and when the doctor is available you have your online consultation over the phone. Im not talking about surgery but routine consultations. It has been done. I havent done it myself. But in the highly regulated medical care, there are hurdles in the way. And there are Startup Companies trying to breck them break them down but it is not easy and it has been a struggle. And rene quashie is going to give us an overview of this emerging industry and the regulatory barriers they face and ongoing efforts to address the barriers. Rene is a Senior Council from Epstein Becker and green focusing on health care policy. I came across rene when i was reading a column where he was quoted. I feel like you are doing something write when the economist is quoting you. Well turn to jeff rowes, from the institute for justice. Jeff is bringing a fascinating case on behalf of a texas vet who was fined for offering advice online. Among other things this case involves free speech. And although it involves a vet, it involves the practice on human beings. Jeff will give us the background and tell us about the current status and the prospects. And finally we have joshua sharfstein. He is a doctor. It is nice to have a doctor on a panel. He is a policy wonk and a high ranking Government Official dealing with healthcare matters. He is currently an associate dean at john Hopkins Public School of health. Before that he was with the fda and the secretary of hnl for the state health for the state of maryland. And josh, i dont know what he will say, may be the voice of caution, hold on you free market loving libertarians, we cant throw out all of the regulations, we need some regulations in place. Each will speak for 1015 minutes and then open it up to questions. Once thing to mention, if anybody has any cell phones, please turn them off. And with that, ill turn it over to rene who will get us started. Thank you very much. By way of disclosure, even though even though simon did introduce me, i do represent a lot of telemedicine stakeholders, hospitals, health systems, health plans and some of the leading Telemedicine Companies so my comments may be skewed in that direction. So i have a quick powerpoint to go through here. One of the things that i start with definitional. Telemedicine and telehealth. They are used interchangeably and some of the stakeholders cant agree what it means. Medicare has a restrictive definition of the word telehealth which involved twoway realtime interaction communication. So it has to be audio, visual. So i put this up there just to show you that we cant even agree on a definition of what were talking about. We cant even agree on the terms. I see someone here from the american telemedicine and they use the term telemedicine and others use telehealth. I like it at broadly. It is just a delivery of health care and services by a telecommunications technology. That is it. Very simple for me. And this is the uses for telemedicine. Well get into this later in the questionandanswer session. This is sort of the three telemedicine modalities. Some folks will tell you or will say the remote patient monitoring is separate and apart and i think gary and i have talked about this before, they consider remote patient monitoring separate and not part of telemedicine but i wanted to give you a flavor that there is a complexity that we need to Pay Attention to. Weve talked about realtime. There is storing forward and digital and audio files are stored and sent to a provider that can look at them later. There is no interactive communication between patient and doctor. Remote patient monitoring is what it sounds like. You monitor patients digitally across distances and providers get information and can intercede at any point during the process. So, what is driving the issue . What is driving the discussion of telemedicine and telehealth. Ive been practicing law for 17 years and i will tell you this is, i think, for the last two years, the first time where i feel like telemedicine and telehealth have arrived. What is driving some of this. Part of this is the aging population. Were supposed to reach 370 Million People by 2030 but i think more important than that is the percentage of those folks that will be 65 and over. Almost a fifth of the population. Obviously the older you are, the older the population, the more Health Care Related issues you are going to have. Do we have the capacity to take care of aged populations in addition to the other things we need to do in the system. This is coupled with the fact that a lot of folks are predicting a shortage of physicians. You see here almost 65,000 by next year is going to double by 2025 and so you have increasing population, increasing share of aged population, plus a shortfall of physicians. You have a Health Care System that is really in a transition from a fee for Service Environment where payers pay for service, pure encounter, to one i will call income for out com. And why your payment is based on health care out comes, quality, metrics and were in transitional phase right now with all of the problems that everybody has read about. And also technology. The sophistication of a lot of the Health Technologies that exist today is incredible. Incredible and the question is can our Health Care System absorb, pay for and adequately manage the risk of the new technology and that is part of the reason were here. Now, in terms of the Telemedicine Market overview, these numbers are all over the map. But what i can tell you is most financial researchers, most economists are very bullish on this market. Bcc Research Predicts that the Global Telehealth market will reach 28 billion by 2017. Global health data does one better and said it will be 33 billion by 2018. Burgen cites estimates well be at 22 billion by 2020 and ihs predicts in the United States well be in the neighborhood of about 500 million by next year. Towers wattson, which is one of the leading employeremployee benefit firms said it could result in 6 billion a year in Health Savings across the board for u. S. Companies to give you a flavor of what is happening. Weve talked a little bit about the landscape that is changing. Weve talked about the transition from a fee for Service Environment to one in which were really, really paying attention to outcome. The benefits of telemedicine. So what are the legal and regulatory issues that we face . The first one we talk about is licenseure. And ill talk about it for five minutes, because i think it is an important issue in that i think there is some readymade solutions that some folks are attempting. The other thing about licensing is we tend to look at it from the physician perspective but there are other midlevel providers we have to consider. Scope of practice which ill talk about briefly and how physicianpatient relationships are established and why those requirems may be a barrier, but some states have taken care of that in their own way. Coverage and reimbursement. It runs from the gamut from restrictions by medicare to a mixed bag in medicaid to a better overall picture for private payers. We probably wont touch on the rest of this given my limited number of time. So lets talk about licenseure. I think the piece you need to understand is the license follows the patient. So there are medical practice acts all over the United States that constitutes what is the practice of medicine. If someone is practicing, they need to be licensed in the state. What state do they need to be licensed in if you have a physician in one location and a patient that is out of state. In the United States, it is where the patient is located. And so you can see how this impacted telemedicine. If you have a dually licensed physician in pennsylvania who is providing online care or telecare to somebody in north dakota, they need to be licensed in north dakota unless they meet a number of conditions. And well talk about that. This is a longstanding barrier. And one of the reasons that i think it vexes people is if you think about health care in the United States, although there are some local differences, i think for the most part a lot of the core requirements are the same across the board. The doctors practicing in california, doctors practicing in florida, especially in urban areas, there is a difference of practice in miami, los angeles, new york and chicago and that is the question that needs to be addressed. There are some exceptions to obtaining a full regular license. I talk about some of these here. Special telemedicine license. A consultation exception which we dont need to get into. But those exceptions usually dont resolve the overall issue of having to obtain licenseure in a number of states. The federation of state medical boards which is the organization that represents 70 state and medical boards across the country have come up with a medical licenseure compact that only applies to physicians and it is a system by which license portability is made easier depending on whether or not a state is part of the compact. So for all states part of the compact, to be licensed in one compact state makes it easier to get a license in another compact state so you can practice. The problem here is you still have to apply. It is not like the nurse licenseure compact where you are deemed licensed. And there are other issues with the license compact. So far i think six states have signed on officially on to the compact and are part of the compact. According to the federation of state medical boards they need sen to make this work and we are almost there. And i think another 15 have bills in various stages of the legislative process. So you could see ten to 11 states being members of the compact by the end of the year. So youll get this going. So this is one stakeholders attempt to address the licenseure issue. And before we go on, i should talk about nonphysician licenseure. Compacts are being developed for nurse practitioners, physician assistants, the nurses have their license compact which i think 24 states are a member of but interestingly enough for the nurse licensing contract, the big states are not members. Texas, california, florida, are not members of the compact so it limited the utility of the nurse licenseure compact. And the other issue ill touch on is scope of practice. How a physicianpatient relationship is established. The one thing i want to emphasize is that in order for physicianpatient relationship to be established among other things, most states require some kind of examination of the patient. What constitutes an examination varies from state to state. In a lot of states, in inperson examination of that patient is required. As you can imagine in telemedicine that may be difficult. Some states have seem fit to pass statutes which allow that examination to tour by telemedicine, meaning if you can get the same information that you can get in telemedicine encounter you would get in an inperson encounter, those states say that is fine. The problem is we have not yet developed enough peripheral and diagnostic technology to make those examinations to facilitate those kind of examinations yet. And so what we see a lot of or what i see a lot of is folks providing Telemedicine Services without actually doing any examination. There is a video connection with that particular patient and a lot of folks are concluding that that is enough. That really doesnt constitute an examination by telemedicine. Now the federation of state medical boards came up with a model policy for the appropriate use of telemedicine technologies that sought to loosen some of the restrictions involved in the practice of telemedicine. And one of the things they talked about was the examination issue and really leaving that up to the physician. Let the physician decide whether or not they have enough information to continue their relationship to diagnose and treat. Unfortunately, unlike the nurse licenseure compact, it exists in ethos. Some medical boards have sought fit to adopt some or all of this but there is not a lot of Energy Behind passage of the fsnb policy. I will say other stakeholders have developed incredible prot protocols. I note there is an Accreditation Program for direct to consumer care. The American Medical Association is developing their own set of protocols so there is a lot of activity in the space that is occurring right now. The other thing i want to talk about before i leave is reimbursement. This is a particularly vexing issue at the federal level. I should tell you that under the medicare telemedicine benefit, 14 million was paid out last calendar year, out of 615 billion in total reimbursements last year. I think that represents. 0023 of health care. And so they dont pay for this. And the reason is that the approach for medicare is this is for people in the most rural of counties in the United States. That is the first restriction. There are only certain kinds of providers that can provide services and be paid under this benefit. The patients had to present a certain kind of facility. The patient cannot be in the home and receive services and have the professionals be paid. And only certain codes are paid for. So if you look at the codes, there is a trend towards assessment and evaluation and psychological and psychiatric services, there is a trend toward having those kind of services reimbursed as opposed to others. Obviously there is a buy as that telemedicine is not suited or suitable for nonurgent primary care purposes. Medicaid is a little different. Most Medicaid Programs, and as you know medicaid has more flexibility to decide what services they will and will not cover, medicaid, most Medicaid Programs cover telemedicine or telehealth in some form. The coverage requirements vary state by state. Some of them follow the medicare very restrictive rules and some are more liberal on the issue. If you cover remote patient monitoring, if you cover storing forward, there is no uniformity, there is no logic to what states can and will cover. I think this could change, especially as Medicaid Programs come under increasing fiscal pressure. Private payers, the private payer world is probably in a better spot. A number of states, and gary, you can correct me if im wrong, almost half of the states have statutes in place that require private payers to pay for Telemedicine Services if the same services are covered if provided in person. So states are forcing private payers to cover telemedicine and telehealth. The definition of telehealth and telemedicine are differing state by state. And i should caution you on that. But the private payer approach i think is a little bit better than with the public payers. The other thing too is even in states that dont have the statutes in place, what we find is a lot of private payers see a benefit in providing the services. Whether they are required or not. And ive listed some plans that none of them are clients. Some plans that are known as being progressive about telemedicine and telehealth services. And ill leave you with that. And ill finish up by saying the one aspect to Pay Attention to in the coming years are employers. A lot of employers are very they are encouraged by what they see and the value in telehealth and telemedicine. There is the impending cadillac tax coming in 2018 and we could talk about that maybe during q a but employers are incentivized to look at telemedicine as a way to con troeft the cost of their employ to control the cost of their employees. Thank you rene. That is a great introduction. And we turn it over to jeff on a case study on what happens when you provide Telemedicine Services online. Thanks. And thanks rene. One of the reasons that telemedicine presents such a challenge is because medicine is a vivid illustration of a peculiar reality in america. Which is everything is forbidden unless it is expressly permitted. So this fresh innovation comes along and all of the medical boards say no, you cant do that, we need to write 10,000 regulations to do it and completely subdue it with the regulatory process and this is america, if we dont have a telemedicine statute, you can be certain of one thing, you better not be doing it. And in parts that because we have a 19th century or 20th century regulatory model. We have 50 different states with regulatory boards and that doesnt take into account the fact that americans can now talk to americans all over the world. There are billions of people who benefit from the expertise of well educated americans and it is completely unclear whether or not they can get it. Now the thing about telemedicine is that at bottom, it is just to people two people talking to each other. That is it. One person wants some knowledge that another person has and they want to share it. By reputation, we live in a free country so what does is the First Amendment and the free speech clause in particular have to say about that. And it turns out to be an interesting and one of the most important unsettled questions in constitutional law. So let me begin by telling you a story. Imagine and this is a true story. Imagine a group of scottish missionaries go to rural nigeria. And a married couple finds a stray caught and they think were going to adopt them but there are no veterinarians or pet food in rural nigeria but they have a cell phone tower so they can get on the internet. And now go around the planet and you find ron hines. He is a retired physically disabled texas licensed veterinarian with a ph. D in biology and spent his career working with exotic animals at a Research Facility here in maryland, he worked at sea world, he was in private practice. Hes just an amazing vet who after he retired because his disabilities made it impossible for him to work, he still wanted to help animals. So one day he and the missionaries in rural nigeria start writing emails to each other about what to do about the cat. How should we feed the cat and make sure it stays healthy. It was a stray cat. What should we be looking out for. And ron and the missionaries are exchanging emails and some other people and mostly for free, but occasionally he would charge a flat fee of a couple of bucks, just for the cost of keeping his website going. He never made any money doing it. So what has just transpired . A disabled 70yearold man in texas writed a email to a scottish missionary about a cat in nigeria. That is a crime. And ron hines had his veterinary license suspended, he was fined and forced to retake a portion of the exam and he had to shut down his website and stop doing it. And why is that . Because under texas law you have to physically examine the animal before you can offer any opinion about it. So this housebound physically disabled vet was supposed to get on an airplane and fly to nigeria and the cat would be without Veterinary Care without ron. And he wasnt prescribing medicine, just offering solutions. That is it. Just two people talking to each other. And what does the First Amendment have to say about that. Because it is supposed to protect americans, and ron hines is an american and anybody subject to the jurisdiction to have useful conversations about the world. Well we brought a First Amendment lawsuit and the federal trial court said you are right. The First Amendment applies. The state of texas tried to get it dismissed on the ground that when two people talk to each other, if that conversation is subject to occupational licensing, the conversation is by definition physical conduct. So if ron hines writes an email that said, you should try to maybe feed your cat some shredded pork, the law treats that as though he is taking a scalpel and cutting a hole in the animal. By definition it is conduct even if it is just words. It is not that the First Amendment applies and you lose under whatever balancing test there is, it is that it doesnt apply at all. And so the federal trial court said the First Amendment applies to this. After all, this is just two people speaking. So the state of texas asked for a appeal and we went to the federal court of appeals and in march they reversed. And they said we disagree with the trial court and were going to call that conduct. If you are speaking and you are giving someone individualized personal advice were going to call that conduct. So what is going on . Well, what is going on here is collision between two venerable constitutional doctrines. One is that state governments have Broad Authority to license occupations. That is well established in the law, we challenge it all of the time. At i. J. , it leads to rational barriers and things are hard to get into because lobbiest create occupational barriers. But set that aside. The Supreme Court said there is protection and the protections of the First Amendment are broad. And what happens with the two when the two things intersect. Well the Supreme Court had a case that was advice to foreign terrorists. And american doctors and physicians were providing individualized foreign advice about how to resolve their grievances nonviolently. One was the the Kurdish Liberation Movement and the other one was the tamer lynn Liberation Movement in sri lanka. And they were considered to be Material Support to terrorist groups an the question up to thg advice to terrorist groups. And so the question that went up to the Supreme Court was, is individualized advice the consistent of speech, no money or guns or bombs or anything, youre just talking about the law. Is that something protected by the First Amendment . And the Supreme Court said, yes, the First Amendment applies. It turns out that the federal government has a huge interest in suppressing advice to terrorists because its just kind of fungible. That just frees up resources for terrorists to do other things. But the First Amendment applies. So we actually tried to take that precedent and we said to the federal court in the fifth circuit, we said, look, if the First Amendment at least applies to individualized Technical Advice to murderous foreign terrorists, surely it applies to this utterly harmless disabled veterinarian in texas whos just talking to somebody about a cat . And the court said no. No. Heres another interesting case about the First Amendment. Thats also from a few years ago. U. S. V. Stevens, which involved animal crush videos. There are people out there, perhaps, you know, probably not anybody in this room, but there are people out there who like to exchange videos about animals getting tortured and that provides them with sexual titillation. So the question the Supreme Court addressed whether or not the First Amendment applies to a statute that restricts communication in the form of animal crush videos. And the Supreme Court said, you know what, this is america. This might be repugnant speech but the First Amendment applies to repugnant speech. The First Amendment applies to animal crush videos. So what does this mean for ron hines, the veterinarian in texas . What it means is, if he decided he wanted to talk to kurdish terrorists about how to, like, lets say they have a herd of cattle or Something Like that and theyre using that herd of cattle to support their fighters or something, he could talk to them about that, and the First Amendment would apply to that conversation if he were to be prosecuted by the federal government for providing Material Support to terrorists. Now, if ron hines also wanted to exchange animal crush videos with scottish missionaries in rural nigeria, the First Amendment would apply to animal crush videos. According to the fifth circuit, the First Amendment doesnt apply if ron hines is actually just trying to help an animal. So if he wants to help terrorists, or he wants to trade fetish videos, no problem. But if he just actually wants to sit down and talk to somebody to help their animal, no, no First Amendment protection. So this is actually a big issue. The federal courts of appeal disagree about the extent to which the First Amendment applies. So we have a case from the early 2000s in california, that involved medical marijuana. And this was before california at that point i think had said that medical marijuana would be okay, physicians could prescribe it. As it is now its still illegal under federal law. So doctors have a controlled substance license from the Drug Enforcement agency to be able to prescribe drugs. And it turned out there are a group of doctors who wanted to be able to say to their patients, look, im not going to prescribe marijuana for you. I cant do that. But im going to tell you that actually in your case, i think there is a valid medical reason for using marijuana. So a conversation between a doctor and patient. The u. S. Court of appeals for the ninth circuit said the First Amendment protects that conversation and the Drug Enforcement agency cant pull your controlled substances license just because youre a doctor having a conversation with a patient about medical marijuana. As long as youre not illegally prescribing it. Because the First Amendment applies even to doctorpatient communications. That should have been a good case for us. In fact we cited it extensively in the 5th circuit. On the other end of the country, in the 11th circuit, there is a case going on right now sometimes called the glocks versus docs case which is about guns. And some gun rights activists got a law passed in florida that forbade physicians from asking their patients about whether they own guns, whether they keep guns loaded. Sometimes you go to the doctor and the doctor might say, as part of a checkup, are you wearing your seat belt . Because accidents actually kill people. And accidental gun discharges or suicide by gun, those are legitimate Public Health issues. So anyway, the gun lobby didnt like the fact some doctors were asking people about guns and they thought it was an invasion of privacy so they got a law passed that said doctors arent allowed to ask people about guns. So, of course, a group of doctors brought a lawsuit and said, look, the First Amendment protects my right to have a conversation with a patient. And that just because were in a doctorpatient relationship doesnt mean we have completely surrendered our free speech rights and the government can tell us to do and say whatever we want. The 11th court of appeals said nope. When a doctor is having a conversation with a patient, even if it is just a conversation, youre not touching them, youre not doing anything, that is conduct to which the First Amendment doesnt apply. You may notice that the medical marijuana issue is kind of a liberal issue, right . And the ninth Circuit Court of appeals on the west coast, kind of a liberal court. And on that liberal issue, the liberal court decided the First Amendment applied. The 11th circuit is kind of a conservative court. And this was like a pro gun thing. And wow, coincidentally, the kind of conservative court decided the First Amendment didnt apply when it was a conservative issue. But we have a square disagreement among the federal courts of appeal, a disagreement that was exacerbated by the decision in the vet speech case that just came down so the Supreme Court actually has to step in. And the Supreme Court is going to have to decide whether or not the First Amendment applies when there is a conflict between occupational licensing and free speech. And so were in the process right now of writing our petition to the Supreme Court in the vet speech case. And this is actually the perfect case. Because whats going on here is you have ron hines, talking to people generally speaking on the other side of the world about animals. Thats it. Theyre exchanging emails about animals. So this isnt even the most intense telemedicine context you can imagine. This is right at the edge. So if the First Amendment is ever going to apply to protect the free speech rights of licensed professionals and their clients, then it is going to apply in the context of ron hines case. And this is the perfect clean case for the Supreme Court to take. The other thing too, there are some cases making their way through the court system right now that have to do with whats called reparative therapy, which is providing psychological counseling, generally speaking to minorers who are gay or say theyre gay and their parents dont like it, and so they seasoned them usually to christianbased psychologists. And there is a movement that says the First Amendment should protect the right of therapists to engage in gay conversion therapy. Now, one of the great things about the ron hines case is it is just about people talking about animals. Its not about gay rights, not about guns, not about medical marijuana, not the hot button cultural issues. It presents the case perfectly in a benign context, where the Supreme Court can address the First Amendment question without worrying about making collateral statements that might have ramifications in other areas of the law. So fingers crossed, well try to get the Supreme Court to take the case and perhaps this Time Next Year well get a decision from the Supreme Court that will tell us whether or not and to what extent the First Amendment applies to occupational licensing, and this will have implications far beyond the practice of veterinary medicine. It will be regular medicine, it will be psychology, it will be law, it will be financial advice, all kinds of things that can done through a distance as a result of the internet. So thank you. Thank you very much. Its fascinating case, and i will keep following it, and i wish you the best of luck with it. Thank you. Im hoping for a Supreme Court decision to hoping it goes a certain way. Even if it doesnt, something fun to talk about. So lets go to our last speaker now. Josh sharfstein and ill turn it over to josh. Thanks so much. I really appreciate the chance to be here. I appreciate the invitation from simon. And i thought both presentations were terrific. Really interesting. Im a little bit in the sesame street segment, where they say which one doesnt belong and youre supposed to pick it out. Thats me a little bit in this panel. Im a physician, not a lawyer, unlike the other three panelists. Ive been appointed to city, state and federal positions, by democrats. And so im coming from a slightly different perspective. I do appreciate that catos internet password is obamacare saves lives. Im just kidding. Thats not true. I thought that was changed yesterday. Now its just a little joke there. Okay. So i i actually started reading simons paper and i was like, i dont think theres going to be a thing in here that i find attractive. And i just found the paper absolutely fascinating and interesting and provocative. And i thought that both of these presentations were also very interesting. And theres a lot to agree with about the points that have been made. And let me just say that for me, telemedicine kind of struck home when i was visiting a rural hospital and they showed me a ward where the patients were being entirely managed by a remote team of physicians. So there were it was intensive monitoring. It wasnt like your phone calling a doctor and showing them your rash. It was a hospitalized you know, situation. And i never had seen anything like that before. And they go, well, actually, theres a doctor watching all of the monitors. And we have one nurse or a couple nurses here that will get a call from that doctor if there is an issue that they need to go check on. Its better than if the doctor were asleep down the hall. And i thought is this a good thing, is this not a good thing . I couldnt get my head around it and whats the best way to regulate it. I think when it comes to telemedicine, its a similar question as a lot of things, which is what is regulation. Is regulation sort of red tape protectionism that hurts consumers, and just keeps things from happening that would save lives, or is regulation necessary to prevent exploitation of patients and consumers and protect the Public Health. And the answer oftentimes, having worked with Different Levels of government, is yes. Its both. And theres no simple one or the other, and it depends how well its done. And the key is figuring out how to strike the right balance. In this case i would say you see with professional boards, there absolutely is protectionism out there. My last job, i was responsible for more than 20 professional boards of different kinds. And i was called on to mediate when the doctors and nurses fought or the nurses and the dentists. There was a huge fight in maryland between the physical therapists and the acupuncturists over dry needling. Dry needling is what physical therapists want to do, but acupuncturists say thats unlicensed practice of acupuncture. And i decided at one point to do a Public Comment period. And usually we do Public Comment period, 100 comments is a lot. And i got over 1,000 comments on all sides of the issue. Very revved up. I picked up my 8yearold from school, and hes like, you know, dad, whats dry needling . And i said why do you ask that isaac . And he said well, because my gym teacher gave me this letter to give to you. So just i used to say that its not a safe place to be between the dry needlers and the acupuncturists. But thats the spot i was in. And at one point i proposed legislation in the state of maryland that would take these scope of practice disputes out of the medical boards and all the litigation, give them to a give the ability for the legislature, just the ability for the legislature to appoint a committee to resolve it in the Public Interest. And the line out the door of all the lobbyists who were testifying against that bill was an image i will keep in my mind. Nobody wanted that. They just wanted to battle it out. So i do i absolutely concur that there are you cannot assume that just because the medical board or dental board or a different board has a particular policy its going to be the right thing for the Public Interest. The flip side is, they do provide very important Public Health protections. And particularly when people are sick, theyre not your economics 10 wellinformed consumers. People who are sick are very vulnerable. There is an unbelievable record in the United States of people getting taken advantage of when theyre most vulnerable, when theyre sick, fraudulent cures, things that hurt them. And it is very much the case that medical boards, for example, protect the public for against physicians who are quite dangerous. As do the other boards. And i used to interview i interviewed all the medical board candidates and we set up a process for interviewing the other candidates and i was like i have only two questions. Number one, will you put the Public Interest first, even if its about people if there are people out there who shouldnt be practicing, it is your job to get them out of circulation and to make sure youre protecting the public. And number two, be reasonable on scope of practice issues. Because you know, the fights that happened were just totally allconsuming when they happened. So how do you draw the balance when you have regulation like this . You know, if youre not going to be someone who just thinks all regulation is wrong and if youre not going to be someone who thinks all regulation is right, and youre going say look, there are some things that make sense and some things that dont, how do you do it . How do you maximize the benefit and minimize the risk of a regulatory approach . And the answer is, you have to set up an approach, a process, that has the Public Interest as the bottom line. And i dont think that the boards themselves can really play an effective role in that. As you do that. I think there are some state models that bring in external people to think those things through. That those are good models, as youre thinking about global models, figuring out what would where are the opportunities to do things that really are in the Public Interest to get the you know, its not just, i think, what simon is putting on the table isnt just that theyre u. S. Health professionals treating people around the world, but people in the United States could log on and get a consultation somewhere else. Well, that may well make sense for certain things. And there could be a system set up that maximizes the benefits of that. But also minimizes the risks by having an assurance or partnership between different regulatory entities. I think thats the right conversation to have. I think that on the basis of evidence, on the basis of logic and best practice, you can pull people together, and ive seen it. And ive even seen it on very controversial issues. We actually regulated abortion facilities in maryland. And when we came out with our recommendations, we had both the right to life groups and the prochoice groups saying they thought we had done a fair job. And that was because we tried to strike a balance, and we were as transparent as we could about the thinking that went into that. Heres where i think i really respect jeffs position on the First Amendment and how it relates. Let me just react to that for a second. I think that in general my view is that it should be the Public Interest thats the real north pole that the compass is aligned to. It should not be an ideological view of the First Amendment. At first i thought jeff was saying, well, look, if its speech, thats it, weve got to allow it. But then as i listen to him its just whether the First Amendment applies and a appropriate test being put on. Im very familiar a as a pediatrician with the case in florida asking about guns. And i do understand the fact that there are speech considerations. I think that if there were a way to say that you know, what is the balancing test. So i think jeff may be focused on getting the First Amendment to apply because thats a threshold issue for him. Im more interested in whats the balancing test you apply. What is the balance between state Regulatory Agency and individuals in this regard, and i think that the balance has got to be some assessment of the Public Interest, whether it makes sense. I would make the case, as a pediatrician, and along with my professional association, that it can be very important to ask about gun safety for the very reasons that jeff said. And that there could be the standard that would be applied is not just are they words coming out of someones mouth, but does it make sense. On the other hand, on a therapy that has been totally discredited by the profession, that it such as reparative therapy, which has essentially no support within organized and evidencebased medicine, that the Public Interest would would favor a regulation in that area. So for me, i could see that there is a yardstick that could be done that its not so much whether the First Amendment applies or not, but then how you would apply an appropriate test so you get regulation that maximizes the benefits to the public and minimizes the risks. And i think probably if we were all to sit down, even though we may come from different ideological parts of the spectrum, we probably could work out that its totally reasonable for someone to be sending cat advice to someplace in the world to help cats, and Something Else might not be reasonable at all. And how do we draw that balance or what would be the process that could draw lines that would lead to better health, lower costs and a interesting progress as Technology Evolves in health care. Thank you. Thank you, jeff. Thank you to all the speakers. I think those are all great presentations, gave us a lot to think about. I want to open up to questions now. Let me take an opportunity to ask a first one so start getting yours ready. I think this question and i dont mean to put you on the spot, rene, and others feel free to answer it too. Bury i think this question may be mostly for you, rene. I dont know what extent youve thought about this. I think both josh and jeff alluded to, there are International Aspects to this, and obviously thats what i wrote about as well. And im just wondering, as we all know, the United States is not the only country in the world. Other countries are aware of this too and doing things too. Rene, do you know, you know, are there other examples of what the European Union is doing, what china is doing . What are other countries doing with this . It seems to me, eventually someone is going to be trading these services internationally. If the u. S. Is going to put up barriers, were going to be the only ones. Everyone else is going to go ahead with this in some way. Do you have a sense of what the rest of the world is doing with this right now . Yeah, a little bit. I think were all sort of in the same boat. A lot of this is new. Or were wrestling with a lot of clinical, political and other issues as well. I will say, for example, in the eu, licensure follows where the physician is located which makes sense and which facilitates the greater access to care, obviously. Because physicians dont have to worry about being licensed where the patient is located. But a lot of other areas have not yet had the sort of fully developed regulatory approach the United States has. Now, one thing i will say is that sometimes i tell my clients, have you thought about starting this somewhere else outside the United States where you have fewer regulations to worry about, where you have fewer political considerations. I mean, we heard about the board, and i think dr. Sharfstein, you alluded to this. There is some protectionist bent to some of these boards as well. So i think were generally all in the same boat, but i would say that given the way our laws are the way our laws are enacted, the way regulations are promulgated, the subregular story subregulatory guidance we have at both the federal and state level, all the various boards you have to deal with if you have a regional and National Network you have in mind and want to develop, its hard to do in the United States. Let me open it up to questions now. So a couple instructions. Please wait to be called on. Raise your hand if you have a question, wait to be called on, wait for the microphone so everyone in the room and audience can watch your question. And announce your affiliation. With that, any any questions . I see one. My name is lee young. Thanks for the presentation. My question now is how are you going to do or what should be done in the medical sector or in the public citizens. One is like hacking or manipulation of equipment or internet or some kind of obstruction, basically. Okay. And hurts patients. And then you have a regulation, but currently there is also a trend as i say, maybe more related to the fraud operation. And they are now promoting occupation without examination. What they call it now is a competency, which is very strongly worded and maybe very subjective. And then if the people complain to the Government Agencies and they ignore the complaint, really, and what they say is they are not in the best interests of the public. So how are you going to regulate Government Agencies rather than professional health care . Go ahead, josh. So i to your first point about security, i think thats extremely important. And i think that is a potential role for regulatory standard, because even if you could work it all out that there is a great dermatologist in germany who is perfect for your kind of rash, and everybody believes its appropriate to do over but suddenly, you know, youre you know, www. Simonsrash. Com shows up on the internet and theres all your pictures because thats been stolen, thats not a good outcome at all. So i do think one of the things that is important is to have Strong Security standards and enforcement of the standards so everybody is participating is at least able to have some level of competence about privacy. I think thats a really good point. The issue about medical board jobs are very hard. And boards in general, jobs are very hard. Because some of the things are very easy. There is something that has been horribly done horribly wrong and needs to be clear discipline or even someone losing their license. But a lot of them are in a gray area. And its very important for boards to be as prompt as possible, be able to at least, you know, as at a certain level, be transparent about its approach to different issues. And then usually theres recourse to the courts if boards dont do for both the provider and for the patient, and in the case of a totally egregious decision, occasionally the courts will pick that up. But there is enormous authority. And i have seen very unhappy practitioners who felt they were being treated unfairly by the board, and very unhappy patients who felt like they were mistreated and the board didnt really listen to them. You know, as the health secretary, i couldnt get involved in every case. You have to appoint very good people. You have to try to orient as well as possible. Its sort of like a judge has to make a tough decision sometimes, and then there is an appeal. In this case you have to think about the board being run well as well as there being some opportunity in certain circumstances for appeals. Do you know anything about the security issues, rene . No. I think security is very important, but i think we have other laws and other requirements. The e. U. Has an incredibly sophisticated privacy and security regime. While security is an important issue, i think theyre addressed in the myriad of privacy and security laws that most countries have. More questions. In the back i see start with the way back and then there are a couple in front and nearby. Thank you. My name is kyl gibson. Im a former cato intern working with simon. I think i see bill in the audience. Happy and pleased to see this issue has been brought to life through simons work. When i was doing research on this, a lot of the biggest challenge seemed to be licensing within states to practice medicine. My questions open to the panel. If the day comes in which, you know, licensing is eliminated per states to practice across state laws, do you see this phenomenon spilling over to other industries . What im thinking is the practicing of law right now doing research on mobile banking in africa and there are similar regulations prohibiting, i guess, the flow of commerce between countries and even between banks. So i just wanted to get your thoughts on that. Thanks. So does this set a precedent for other industries . Yes. If the First Amendment applies to occupational speech, which it should, then it will be a precedent that applies outside the context of medicine. But as josh was suggesting, how it applies will be a little bit different. And, you know, the particular tests that we would use in the First Amendment likely although i dont know it would be Something Like the test for commercial speech which recognizes theres a substantial interest, constitutional interest that should be protected but maybe not as big constitutional interest as in other contexts for example pure political speech. What would this mean . In the context of medicine you would expect there to be reasonably robust protections because appendicitis in florida is the same as appendicitis in alaska. But on the other hand florida and alaska actually have some different laws and might have different banking laws that are peculiar, or different real estate laws that are different for whatever reason. So the kind of teleoccupational regulation that will exist, even in a context in which the First Amendment applies, will allow for the kind of flexibility that josh is describing, i think. But it should apply to just about everything. Like Financial Services seems huge. That should be there. The practice of law frankly is something thats big. Psychology and maybe life coaching, and diet and nutrition. Those are the kinds of things people can actually do from a distance and they can do much more cheaply, much more conveniently if it were possible to do it across state lines. Let me do state that i support medical licensure by state there is a strong history of medical licensure by state. In maryland we did a lot to improve the function of the medical board there are some terrific doctors serving on it, and they did a great job clearing a backlog and expanding procedural safeguards for doctors. Its a really hard thing. It goes to my previous question. And i think it has credibility in part because its relatively local. We have experts from the university of maryland, on the chair of the board, johns hopkins. If youre taking someones license away, it helps for there to be an internal credibility within the community about the fact that its the medical profession doing it. Its not some external, National Board of local doctors. Its actually a local board. I think that getting the boards right is correct. What the relationship between the boards are and the contacts and the expansion of those, that would be right area to pursue. I would say that as you think about how you approach policy judgments, i would afford a lot of importance in the need for the people to be licensed for where they are taking care of patients. And i see this different a little bit than the case of the veterinarian, because the case of the veterinarian, its about sort of the definition of how to practice. You know, you should have to do a visit before you do something. Those sorts of things are like trying to regulate the practice within a place that youre doing it. Whether or not i think there is an appropriate role for the First Amendment or other things to say actually you dont need to get licensed in this other state anyway, i would probably have much more of a concern than, because i think that there is a huge Public Health value to having wellrun medical boards at the state level. But i see that as a little different than the case of what is under the jurisdiction of the board, and how the board may be going about its work within a state. As a quick response, as a constitution lawyer, the mere fact that free speech rights are inconvenient to the government is not a justification for ignoring them. The constitution is the foundational document and our free speech rights are foundational. And even if they create what might be a suboptimal regulatory state, that may be what a free country tolerates. And i appreciate that. As a pediatrician, as a pediatrician, i would say i gave a speech at one point in a law school where i said im familiar with the argument that the bill of rights is not a suicide pact when it comes to terrorism. I would say the First Amendment is not a suicide pact when it comes to Public Health. Fair enough. Do you want to weigh in on it . The only sort of talking about the boards, arent most boards complaintdriven, doctor . Number one, a lot of boards are underfunded, number two. So the question i always have are the boards the best way to regulate the practice of medicine given those two things i have just mentioned. You know, i think that the question is certainly there are boards that are underfunded. And i think you could look at a lot of front page stories to seay say theyre not doing as good a job, a number of them, as they could do. Its complicated to think how you would do better other than to improve boards like we were able to do like i feel in maryland and other places. Because of the local nature of medicine and the history thats there. I guess in this respect maybe im the more conservative person on the panel. And then like i would be careful about throwing out, you know, more than a century of regulation at the state level, unless you really had a sense of what you would do. Do people really want one group, you know, hearing all these cases within, you know . And it is true, though, that there are local standards of care for certain things. And so, you know but arent those not to interrupt you, but arent those disappearing over time . Thats probably a debatable proposition. I think there are people who would like to see some of the differences disappear. But it may be that, you know, if you have a board that has their group of experts in a particular field from one part of the country, they dont realize that there is a unique different kind of disease or history or treatment or wariness or something that is going on somewhere else. You know, i think that its, i have written about the flaws of medical boards. So im not in any way trying to defend them. On the other hand, its not that easy to think of a National Medical board that would be able to do that much better, i think. Lets open up to other questions. I see a couple in the back there. Maybe the guy closest to you, and then the one in front of him and the one over to the right. Hi, Steve Chisolm with the chisolm group. Thanks to the cato institute. I enjoy the panel. I was thinking about the v. A. Health care center, the veteran ace fairs medical system. Theyre trying to talk about telemedicine and doing some things this would be at the federal level but obviously would affect the First Amendment. Ill admit to being an attorney. But it will also be done at the local level. Particularly with rural veterans,. Its a major issue in the country right now. I wonder if the panel may opine about that. Does anyone know about the issue . There. Are parts of the country that are in desperate need of access veterans are particularly in need of Mental Health care and other services that arent available in all places. And one of the things that comes up, for example, in the military medicine and Veterans Administration is whether it makes sense to, you know, you have both huge gaps and access to care, and quality problems at certain places. And can you is there a strategy that involves more hell medicine that can address both of those at once. I think all of those are very policy questions. And in the end, the question is are people healthier, and can you design something to really serve the needs of veterans. That should be the litmus test, not some arbitrary measure of speech, but are veterans getting healthier. And sometimes i think we take a one size fits all approach. Its just telemedicine. But i think we can all agree, for example, in teleMental Health care, you dont really need to lay hands on patients to be effective. Its really about communication. I would think that for subspecialties like that, telemedicine is a great fit. And ought we not to treat that differently than telecardiology or Something Else. Yeah. So maybe we ought to start thinking about this in a more sophisticated way as opposed to one size fits all and everything fits under this umbrella of telemedicine. Right. And its certainly true that doctors can say things to patients short of an actual diagnosis and implementation of treatment. So ron hines, for example, one of the things he did is people would write him and say ive been to two different veterinarians. They have given me two different diagnosis. Can you just look at the files and give me your opinion and we can talk through it. Help me make a decision because i have to make a decision. Ron is a kind of person who has great experience and can help out. With respect to people who are in rural area, a one of the things that ron got in trouble for was there was an impoverished double amputee in maine who was living by himself, and the only thing he had was his beloved dog, and his dog was sick. And his dog was dying. And ron was talking this guy through certain things to help alleviate his dogs suffering. And eventually ron found a veterinarian in maine who would treat the dog for free for this amputee. And another veterinarian heard about that, that ron hines in texas had been providing initial help to this over the phone and reported ron hines for doing that. And that was just pure economic protectionism. No rational person would say that this impoverished double amputee who is not going to a veterinarian, who is getting some free help from a guy in texas, that that should be stopped. Its ludicrous. But anyway, thats one of the things that happens. And one of the reasons why we need to have a rational telemedicine regime. Another question right there. Hi. Pat michaels from cato. This probably goes to dr. Sharfstein, but maybe to the panel in general. And it has to do with the complexity of the ultimate Regulatory Regime that were going to have. I can see to maybe differ with you on the remote cardio, if you put a heart monitor on a person and they showed some frank arrhythmias, some remote physician can read that and make a reasonable diagnosis and proper prescription without seeing the person. However, if you show up with some kind of maybe substantial skeletal pain syndrome to an orthopedic person, youre going to have to be examined because you cant remotely do the manipulations that are required in order to come to a reasonable perspective diagnosis. Where this question is leading is it seems to me given these differential regulatory possibilities, that we may wind up with a group of folks having to go through the entire diagnostic code manual to decide which one requires a personal visit and which one does not. And that will entail all a kinds of special interests getting in on this. How do we prevent this from being 10,000 pages of regulations that nobody understands . Sounds like youve seen those regulations on some other issues, im guessing. Im thinking of a person, famous person from m. I. T. So i think that youre asking a very, very good question, which is and this is partly about the approach to regulation. How do you strike a balance. Its not such a jerry rigged balance that its impossible to actually apply. And it just makes things frustrating for literally everyone. And that can happen as part of regulation. I think, you know, there are organizations that their expertise is in trying to cut through very complicated issues and come up with very clear guidelines. Examples would be compensation programs that get set up for military, former military members who have been exposed to certain things. What are the criteria. Well, you can go through, you come up with the most complicated flow chart in the world, or you come up with basic criteria that are fair and able to be applied. The institute of medicine of which im a member does this a lot. They take very thorny questions and say we need to come up with a regime for doing this that is implementable and reasonable. Theyll bring together people across an issue. And then theyll say this is an approach that would be in the Public Interest. Nothing is perfect, but this is the best we think we can do. So you have to charge, in my opinion, its not i used to think a lot at the state about Stakeholder Groups versus expert groups. And oh, were going to get a Stakeholder Group together, and its going have 25 people on it. And each one of them is going to go back and check with their own group, right. That would be people would say to me when i would hear about this that your next career is not as professional poker player, josh. Because i would make a face just like you. Oh, no. How are we ever going to get to a reasonable process, outcome. Even one that people could live with if everyone feels beholden to their individual group. On the other hand, if you set up an expert group, which can have a lot of public input and Public Participation in, but people arent representing their group and theyre given a very clear charge, and you a great person leading it, you can really get reasonable things. And people just have to youre striking a balance. You to set that up. So i think it can be done. You have to think of organizations that can do it, and then you give them the challenge. You know, another possibility is that maybe we dont need a multitude of complex rules. Maybe there is a simple rule. And the simple rule is the doctor has to per size professional judgment. So for example in ron hines case, if the animal lets say he zpm examines the animal. He could euthanize the animal, provide surgery, provide powerful drugs, based on his exercise of professional judgment. Thats what being a texas licensed veterinarian means. And there are plenty of instances in which he would talk to somebody via the internet and say you know what . Youre presenting questions that i cant actually give you good advice. It seems to me that the nature of your problem isnt amenable to a telemedicine solution. So you have to go see a vet. So rather than think, well, we are to enumerate every conceivable permutation of the doctorpatient relationship in order to regulate it, what we should say is when you have passed the threshold requirement of actually being a doctor and we have invested in you the authority to exercise your professional judgment, then engaging in responsible telemedicine is just an extension of that authority. And that actually seems to make sense. Now, i said this to the court repeatedly that if dr. Hines can do all of these things to an animal in person, why do you think his capacity to exercise judgment utterly disappears merely because he is having a conversation over the internet . It doesnt make any sense there is no rational conception of a doctor and a patient in which that makes sense. The issue, though, is where the regulation is going to happen. So lets say that the animals were in another state. Hes taking he is charging for the advice that he is giving, but the other state has basically no ability inside that state to challenge any problem if there were a serious problem. And so there is at least i think a clear risk to Consumer Protection if you were to say youre a doctor in maryland. Its up to you, your judgment, whatever advice you want to give, medical advice, prescriptions, anything, on any topic. Because my license is i can take care of big people, as we call adults in pediatrics. And its all back on the maryland medical board where they cant very easily go out to somewhere else to evaluate the care or see what is actually going on. That strikes me as a framework that could be quite risky to consumers. Although you might have, there is the sort of general concept of law that if you enter someones jurisdiction and you do things that are tortious, you can be held to that jurisdiction. Where we recognized reasonable interjurisdictional practice, and you would say if im a doctor in texas and im talking to somebody in maryland, then by virtue of this compact, or just by operation of general principles of jurisdiction, if i say or do something that results in harm to the patient, i have just subjected myself to the jurisdiction of that board. And i can be discipline order do whatever. I dont know thou work it. Youre the expert in that area. But i just mean that the thing that struck me about the vet licensing case and the general approach to telemedicine is that we trust physicians to exercise reasonable judgment in the inperson context. And i dont know why were terrified of them being able to exercise similar reasonable judgment in the telemedicine context. Theyre still grown adults. They still have medical licenses, although i understand the complexities that it presents. I dont want to go too far there are two things you have to tease apart. If it were all within the same state, you know, i would be very much, much, much, much closer to your position. Its when you split the jurisdiction, make it harder for people who could be harmed to, i think you wind up with a potential for a a policy failure. I think another question sort of the middle back. Wes coopersmith from generation opportunity. A lot of the regulation were talking about could be construed over interstate commerce, right . One physician from one physician talking to a patient from another state. So should states be allowed legally to regulate that type of commerce . Turn over to the constitutional lawyer and the 10th amendment and all those issues. So the question is whether or not when a state is attempting to regulate the movement of medical advice, some kind of occupational advice across state lines, what is the dormant commerce doctrine which says states cant create unreasonable barriers to interstate commerce. Its not a very popular doctrine among the Supreme Court. It hasnt been very clearly litigated. And there is actually some there is some federal appellate law that says that what the dormant Commerce Clause is really worried about is the movement of goods. And if its just cash or advice, that may not actually now it may not actually be something moving in interstate commerce. Its probably not tenable, and there will probably be disagreements about it. But as i understand it, the telemedicine problem hasnt been considered primarily as an interstate commerce problem, although it strikes me that that kind of thing will ultimately be litigated. Im sorry i cant give you the right answer in constitutional law is always maybe. I cant give you a definitive answer. A coupling more questions. I saw the guy in the fourth row there. One over there. The podium was blocking me. Well get to her next. Okay. Victor rodsey, institute for justice. This is principally aimed at dr. Sharfstein, but please do weigh in as you see fit. It is remotely realistic to expect any sort of regulation of telemedicine to be enforceable . I mean, i see a host of problems in if we set up this vast Regulatory Framework, assuming that there will ever be a consensus on it in which, you know, you would have to record, for instance, skype conversations with your doctor. Or i see nightmare scenarios where state medical boards are partnering with the nsa to get data and be able to regulate that way. So i just wonder how exactly could how exactly could any Regulatory Framework around telemedicine ever really be enforced. Sure. I could see your nightmare scenario and raise you another nightmare scenario, but i wont do that. You can have a lot of discussions where youre trading nightmare scenarios. I think rene laid out a framework. I would be interested in his view whether it could be worked if it were picked up. You have compacts where people can see patients across states. If that were something that were to be facilitated, then people could see patients across states and the enforcement would come that if somebody stepped across the line, did something that was wrong, there would be a complaint. The medical board would then be able to take action. You know, i think there is any necessity that there be some kind of crazy amount of surveillance. Most things are done by doctors have an obligation to take medical records, just like they do in person requirement. In person medical practice. And if, you know, i was the patient, you were the doctor in another state in one of these compacts, and i felt that there was a problem, i would explain it. And then people would look at your records just like they do in any medical board case and have to make a decision. It may be a hard one to make, but then you would have a framework, because you would be licensed both in your own state and in my state and the process would play itself out. I dont know. I think the thing with compacts, everybody has to remember youre only as strong as how many states are actually part of the compact. Right. So what you find in them, there is licensure compact, great idea. In one compact state, youre deemed to be licensed in the other compact states. Some exceptions apply. The problem there is if you look at the map who is part of the compact, a lot of your biggest states are not. So youre left with a situation