Posted On Friday, August 5, 2016
Senator Bob Menendez’s political corruption case will go forward under a ruling from the U.S. Court of Appeals for the Third Circuit. In a 22-count indictment, the government alleges that, from 2006 to 2013, Menendez solicited and accepted gifts from a Florida opthalmologist in exchange for, among other favors, (1) influencing an $8.9 million enforcement action against the doctor by the Centers for Medicare and Medicaid Services (“CMS”), and (2) encouraging the U.S. Customs and Border Patrol to intervene on the doctor’s behalf in a contract dispute with the Dominican Republic. Menendez allegedly wielded that influence by meeting with and speaking to – either personally or through staff – high-ranking Executive Branch officials, including then-Secretary of Health and Human Services, Kathleen Sebelius, and Assistant Secretary of State, William Brownfield, on the doctor’s behalf.
Menendez moved the U.S. District Court for the District of New Jersey to dismiss the indictment. He argued, in part, that his interventions were legislative acts protected from prosecution by the Speech and Debate Clause of the U.S. Constitution. The district court denied the motion, and the Third Circuit affirmed.
Before the Third Circuit, Menendez contended that the Speech and Debate Clause protects any effort by a legislator “to oversee the Executive Branch.” Conversely, the government argued that legislative attempts to impact executive action are never protected by the Speech and Debate Clause. The Court spurned both “all-encompassing” positions, holding that informal efforts to influence executive action are “ambiguously legislative in nature and therefore may (or may not) be protected legislative acts depending on their content, purpose, and motive.”
Applying “clear error” review to the district court’s factual findings, the Court rejected Menendez’s characterization of his conduct as legislative fact-finding and efforts to change executive policy. The district court found that Menendez’s actions were tied to a specific individual, and the Third Circuit panel determined that ample record evidence supports that conclusion. Thus, under the deferential standard of review given to findings of fact, the conduct alleged in the indictment amounts to lobbying on the behalf of an individual, activity that the Speech and Debate Clause does not protect.
According to a statement on his defense counsel’s website, Menendez plans to petition the Third Circuit for a rehearing en banc. Such petitions are rarely granted and even more rarely result in a different outcome. Thus, Menendez likely will have to pursue an acquittal before a jury.
Posted On Friday, June 3, 2016
South Carolina, in a move that is becoming increasingly common among various state legislatures (or their medical boards), is on the verge of completely re-writing its telemedicine law – including the often murky issue of when it is appropriate for physicians to prescribe medications (especially non-narcotic) via telemedicine visits in the absence of a prior in-person physical exam being performed by the prescribing physician.
On May 25, 2016, the South Carolina legislature sent to Governor Nikki Haley Senate Bill 1035, which facilitates the use of telemedicine by establishing certain recordkeeping requirements. SB 1035 also defines “telemedicine” and details the requirement of a physician-patient relationship, so as to allow the prescribing of medication when the physician-patient relationship is established solely via telemedicine.
More specifically, the bill provides the following details:
- ‘Telemedicine’ means the practice of medicine using electronic communications, information technology, or other means between a “licensee” in one location and a patient in another location with or without an intervening practitioner.
- A physician may prescribe for a patient whom the physician has not personally examined, when the physician has established a physician-patient relationship solely via telemedicine, and so long as the physician complies with Section 40-47-37 of the act.
- A physician who establishes a physician-patient relationship solely via telemedicine shall adhere to the same standard of care as a physician employing more traditional in-person medical care and shall be evaluated according to the standard of care applicable to the physician’s area of specialty.
- A physician shall not establish a physician-patient relationship via telemedicine for the purpose of prescribing medication when an in-person physical examination is necessary for diagnosis.
- A physician who establishes a physician-patient relationship solely via telemedicine shall generate and maintain medical records for each patient in compliance with any applicable state and federal laws, rules, and regulations. Records shall be accessible to other practitioners and to the patient in a timely fashion when lawfully requested.
- Prescribing of lifestyle medications is expressly prohibited (i.e. erectile dysfunction drugs or abortion inducing drugs) unless permitted by the medical board.
- A simple questionnaire without an appropriate evaluation is prohibited.
- A physician, practitioner, or any other person involved in a telemedicine encounter must be trained in the use of the telemedicine equipment and competent in its operation.
- Moreover, a physician who establishes a physician-patient relationship solely via telemedicine has numerous additional requirements:
- adhere to current standards for practice improvement and monitoring of outcomes and provide reports containing such information upon request of the board;
- provide an appropriate evaluation prior to diagnosing and/or treating the patient utilizing technology sufficient to accurately diagnose and treat the patient or, in the alternative, use of a licensed healthcare professional as a telemedicine presenter is permitted in order to provide various physical findings the physician may need to complete an adequate assessment;
- verify the identity and location of the patient and be prepared to inform the patient of the physician’s name, location, and professional credentials;
- establish a diagnosis through the use of accepted medical practices, which may include patient history, mental status evaluation, physical examination, and appropriate diagnostic and laboratory testing in conformity with the applicable standard of care;
- ensure the availability of appropriate follow-up care;
- Schedule II and Schedule III prescriptions are not permitted unless specifically authorized by the board;
- maintain a complete record of the patient’s care according to prevailing medical record standards that reflects an appropriate evaluation of the patient’s presenting symptoms;
- maintain the confidentiality of the patient’s records;
- have a valid, current South Carolina medical license; and
- discuss with the patient the value of having a primary care medical home and provide assistance in identifying available options for a primary care medical home.
SB 1035 is set to take effect upon approval by the Governor (which, at the time of this entry, has not yet occurred).
How does the recent activity in South Carolina, and several other states, impact the bigger picture of telemedicine? For starters, as more states adopt standards for conducting telemedicine, a loose uniformity emerges amongst the states as to what the appropriate standard of care is when conducting telemedicine visits. The more familiar themes are: (1) stating exactly what is not permitted; (2) a telemedicine encounter must approximate an in-person visit (i.e. sufficient information must be secured in order to render a diagnosis and/or prescribe a medication for the patient); (3) the type of communication system that is required to be used; and (4) failure to adhere to the standard of care will be subject to discipline (which initially may result in a physician being subjected to more harsh penalties). Second, it appears that for most states (but not all) a reasonable recognition is taking hold that telemedicine is not a different form of medical care, but rather a different method of delivery of the same medical care (with the same standard of care) that would have, in the absence of modern technology, been provided in-person.
Which state is next and what approach will they take? Stay tuned!
