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tv   Key Capitol Hill Hearings  CSPAN  May 29, 2015 4:30am-6:31am EDT

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think it has to be done very deliberately. and although the pace may seem like why don't we just directly passed the resolution to give everybody black granite payments, there is a downside to that. this is one of the reasons why we feel like doing it in a somewhat more studied and deliberate manner is going to be better for most patients. jeffrey: i agree that it is not just a question of throwing money out there and that is not the hennepin model, but it is also inaccurate to say that medicaid patients can do what hennepin is doing already. it brings all sorts of resources to the table that then get better integrated, and your typical medicaid-managed care organization does not have the resources to do it, doesn't have the authority to do it, doesn't have the capacity to do it. that is where it is fundamentally different. lisel: that brings us back to where the task force ended up
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you this exchange illustrates the issues the task force struggled with and the reason they focused on these concrete recommendations -- for example calling on cms, the model, not to scale hennepin to model hennepin-like examples so that we can in a deliberate fashion uncover this common element that needs to be there and the models that can be tested and proved. we can scale in a way -- it is almost as if hennepin is priming the pump, giving us a little bit of an example. what are the mechanisms and tools that we have for access -- like, for example, innovation grant awards, etc., that can help us responsibly understand the attributes of a new model moving forward? i want to get to our audience questions.
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if anybody has a burning additional comment about the conversation we have been having -- yes. >> only to mention that in passing that a previous study we put out a year ago called "training doctors were prevention-oriented care," we haven't talked about that too much, either, but it was headed by dan glickman and donna shalala. jeffrey: when bill mentions how you create trust, i think that is part of it could recognize that people in the community are their partners and that is a place where public health can be an important piece. the clinician that is told that there is these wonderful community programs and you will have much better outcomes -- cms is holding me accountable for
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reducing calls among the elderly. how do i find those programs and feel confident in referring my patient? in massachusetts, the health department has developed a database that is integrated with electronic health records and makes those referrals to community-based organizations and the community-based organizations report back to the primary care provider. there is information going in both directions. just as importantly, the clinician can feel confident because there's the third-party validator of the programs. >> but it is also important to mention that there is almost as much mistrust from the public health site as there is from the clinical side. lisel: if you could identify yourself and ask your question -- could you pass the microphone? thank you.
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>> is that on? i am an evaluation scientist and register owners of some 25 years. worked a great deal of my time in home care but also worked inside hospitals. recently i attended a meeting held in the national quality forum where a representative asked a question that i initially thought was rather poignant and in some ways kind of wrong. but as i think about it, it makes sense. it's all of this prevention works, and it should, how are we going to keep our hospitals full was the question. now, it is a bad question, but if you think about it, the question underlying it is how do we keep these people employed, and what do we do with the cost shifting that is going to happen because of prevention? basically, how can i work myself out of a job and yet still
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keep one? lisel: alice? alice: that's a good question, but i don't think the answer is really as hard as it sounds. the answer to how are we going to keep all hospitals open is we are not. we are going to convert some hospitals or hospital wings or whatever, as has already happened, as you know, to outpatient care and possibly other things that have to do with prevention. and so what are we going to do with the building is not so hard. it really is difficult to get hospital administrators to say that you are telling me that i ought to encourage things that give me fewer patients in my hospital.
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it is going to be a long road to helping them see they could preside over a different and more varied enterprise, but it wasn't going to look exactly like the hospital that they have known and loved. but one of the things that helps answer the question "what are we going to do to keep health care workers employed" is we are in a situation in which no matter how much prevention we do, we are going to need more health care because of the demographics because we have this bulge of older people and older people and older people are sicker, even into good prevention.
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i don't think the question of are we going to have unemployed pediatric cardiologists is a very serious one. we are going to have to retrain some people and train new people in the skills of prevention. >> this is disruptive on the public health care side. it is not like there's not enough work to go around, but the nature of the work that everyone is going to do, 10, 15 years from now, someone else in here will be observing the nature of the change not just on health care side but the public health side, in terms of who does what and how. darshak: one interesting model -- maryland is doing this right now.
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hospitals have these fixed total costs. it is complicated, as all these things are, but the bottom line is this -- you at the hospital cannot make a lot more money by just doing work anymore. you have fixed budget. suddenly, think about the incentive. you used to drive by the hospital oh, our emergency wait time is five minutes. come on in. now when you have a fixed budget it is totally different. they are like, we don't want to see you again. you have a situation and suddenly hospitals are investing in mental health clinics in their communities. they even themselves have the market incentive to do exactly what it is you are doing, and i think this model, it is come again, complicated should we are evaluating it, there are all these issues. but this -- we are trying to replicate this if other states are interested as well.
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these are the kinds of steps we are taking to address this kind of problem. we want to market, where possible, to take care of these local needs and not have us impose it from the outside. >> i would like to address something -- there are some biases -- excuse me? oh, i am alan ross and i've done quite a bit of public health work in my professional career. there are some biases that exist in terms of prevention on substances that could have a very big impact on prevention, but the biases have put these down. i bring up one, which is vitamin c. people will tell you, oh, that was linus pauling and he has been disproved, that is not the direction to go.
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this will be a surprise to many of you -- george washington university medical center has a vitamin c clinic. they will tell you a lot about the science of vitamin c, and why we should look at it. take another one from a powerful steroid hormone for which there are 35,000 journal articles, enough rtc's were there, too randomized controlled trials and yet this substance vitamin d is not talked about much in terms of real prevention, when the sun could give us a lot of help in that. but then the dermatologists have given us the story that we shouldn't have this exposure. and a lot of health problems have resulted from that. sure, you want only reasonable exposure. but we want the information getting out to the public. things like this, where biases have crept in, the science has
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to be examined and understood deeply. there are those who know the science, vitamin d at boston university medical center, when to them -- lisel: thank you. >> can anyone address this area, and have you thought about it? jeffrey: there is never going to be definitive answers on a lot of questions, and our answers on nutrition are shifting over time. i think the right policies are made based on the weight of the evidence and institutions like the institute of medicine bring people together to make those judgments. as with anything we do in medicine and public health, we go on the basis of the best knowledge we have at this time with the acknowledgment and as new data become available, we make changes. lisel: bill? william h.: alice and i were on a conference yesterday and
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brought up something called the white hat bias, which comes from peer-reviewed articles. there may be bias in those articles because the editor has a certain bias. the point i recently make here is that we probably need to go ude for suggestion, for hard evidence to look for other sources besides peer-reviewed academic articles for determination of what should be pursued in terms of our analyses. lisel: question in the second row. oh, sorry. >> my name is mike and i'm with the national organization of naturpathic physicians who are
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trained in prevention and wellness. and i guess my question is primarily for lisel, perhaps. i was here about nine or 10 months ago, and i believe there is another task force, and the staff director, and want to say them is janet -- i'm not certain. my memory plays tricks sometimes. it is not wellness so much as memory retention for me. but that task force is an employer task force. there is a representative who is the chairman of edna, and verizo --chairman of aetna, verizon is represented, and coca-cola, among other groups. when you talk about community support and community prevention and a data collection and data tracking, is there a synergy between these groups? have you guys talked? do you foresee a role for employer-based incentives? those are quite real for
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employees or could be made quite real. they are not bound by the scoring rules that entwine congress and the administration. i wonder if that is also a way to gather data and look at it longitudinally. lisel: thank you very much for the question. i'm going to make two comments and see if bill has something to add. you are correct, bpc has supported the council on health and innovation with the ceo's you describe. they're finding put out last september looked at ways that employers could improve health and three buckets. one has to do with the health of the individual, one had to do with the health of the community, and one was having to do with the health care sector itself. one of the ingredients of the conversation was precisely that, the role of evidence and the role of the private sector in helping to contribute to the growing evidence-based. that is a charge that they are very mindful of and aware of
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the role that they can play. the second thing i would say is in terms of employers reaching out to the community, that is, again, another place where there is a very powerful opportunity i think, for big employers. collectively, the group employs one million people in the united states. to make a real impact at the community level going forward. bill, i don't know if you want to add anything to that. william h.: you left out bank of america and a number of other large corporations and if you walk around, you'll see a number of the bpc staff, because they launched a major effort, all those corporations, and a challenge in terms of physical fitness and walking activities. i would also like to point out i have the pleasant responsibility of overseeing the health care area here. that is not just prevention. we have health innovation, we
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have health cost containment. in some ways, interestingly enough, when i find is -- be careful how i say this -- the silos exist even in a small organization like bpc are the same silos that exist outside. how do you integrate prevention, health care costs, technology? we are doing a great job of integrating here. but i just want to say, it is a small microcosm of what we see outside going through with these activities. lisel: second row? >> thank you. david morgan. i'm visiting from the united kingdom. there are many great differences and we have a national health service and i know that they are already delivering programs which identify people of particular risks, share information, encourage healthier lifestyles, encourage doctors to focus on at-risk patients.
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but i walked across the parking lot from my own doctor to the supermarket and there are heavily discounted candy, major manufacturer, advertising the joy of eating lots of chocolate, heavily discounted alcohol, and even diet foods with lots of sugar. what is the evidence -- how do you measure how much and at what cost good efforts are being undermined? >> bill? [laughter] william d.: i'm not sure i know the direct answer to your question, what we are at a plateau with obesity rates in children. we're seeing decreases in our youngest children. that coincides with the national changes, which includes a reduction in the consumption of fast food, pizza, and sugar drinks, all of which are not well compensated for when
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someone consumes them. that is probably a consequence largely of new information. i think it is fair to say that michelle has played an important role in increasing awareness -- michelle obama played an important role in increasing awareness. even the limit on sugar drinks in new york city failed, the press that accrue to the initiative i think had an enormous impact on recognition of the role of sugar drinks in obesity. i think the challenge here -- and i think the single most effective thing that i think we can do is pass a sugar drink tax of a penny for an ounce, which happened in berkeley. it passed in san francisco but did not have the requisite two thirds vote to direct the funds more directly. it happened in mexico. it is clear that berkeley is already showing an increase in revenue and it
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was already a decrease in the conception of sugar drinks in mexico could what we need is more data on what health impacts those challenges have. all of that is before we have really begun to substantially change the environment around food in a number of institutions. schools have changed as a result of the healthy hunger-free kids act. the child and adult care feeding program which is about to emerge is going to set standards for early care and education. the one area -- there are two problems. one area we have not been very successful with his increasing physical activity in the population. the other thing that is worth mentioning -- more than worth mentioning, it is a significant problem -- is that although we are seeing decreases in the prevalence of obesity the municipalities and states, those are largely limited to the white population. as a result, the disparities in
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obesity are increasing in those communities despite their success. unless we come to terms with those challenges, the disparities with respect to obesity, i don't think we will have long-term success. some of the programs that we discussed have not been necessarily ethnic-informed or ethnic-specific. i don't think we yet know how to do that, or know how to do it well. alice: and it isn't just sugar drinks. it is smoking and other things that become markers of class and ethnicity, unfortunately, in a way they were not before. darshak: to pick up a little bit on that, i'm optimistic on this. not long ago physicians were advertising cigarettes. there is a tendency -- teen pregnancy rates are lower than they ever have been.
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obesity rates are significantly decreasing. smoking rates are lower than they had been in a very, very long time. in many ways, the substantial improvements in public health have occurred. it is a matter almost of are you a glass is half full or empty kind of person. you can go out and see evidence. epidemiologic trends show that the system, for all of its flaws, seems to respond very positively in the long run. we have the lowest risk of cardiovascular mortality we have had ever in the united states. i think the other thing that is important is i think i made a comment that me in medicine know the price of everything and the value of nothing. the key thing to point out is that many of the interventions are not ones that necessarily we sat around the table and said, wow, are we going to calculate the precise cost-benefit. they just clearly made sense. that is how i would think about
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it. these are political fights to some extent. why do we do early childhood education? yes, we can find about the economics of it, but we can argue also if it's an ethical responsibility, is it the right thing to do. we shouldn't lose track of the fact that we need to fight these battles politically not on the economic level, but one that does appeal to equity, to opportunity sprfor all people. health, we can all agree, it's something that has universal appeal. we want to do things in a financially responsible manner, but all this randomized data, it is really nebulous a lot of times. even when you get all that data together about what the right thing is, what you are left is is what is your ethical responsibility. what do you believe is the right thing to do? lisel: i would like to end on that cup-have-full high note and just say we have focused a lot of here on the federal policy
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levers for change that are important, and those are important. we do need more data, we do need more sustainable financing models, we do need better connection between the clinic and the community. but this is not all caps-down stop -- not all top-down stuff. a lot of this is homegrown ingenuity that people are figuring out on the ground. many of you who are watching online, on c-span, on twitter, featuring out care, reimbursement strategies, and if we can integrate the clinics, the communities, health and public health, we can get all of us in this room to hold hands and march forward. we look forward to working with you as we think about how to implement some of these recommendations and thank you all so much for coming. [applause]
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>> coming up today middle east scholars talk about the implications of reebt changes in saudi arabia's leadership. live coverage from the atlanta council starting at 10:00 a.m. eastern. >> this on q & a. david mccullough. >> they didn't graduate from high school. he said stay home. you don't have to go to school. he knew how bright they were. wilbur was a genius. orville was very bright.
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very inventive. clever mechanically. he didn't have the mind that wilbur had. they loved music. they loved books. nathaniel hawthorne was orville's favorite writer. katherine loved sir walter scott. on one of her birthdays, the brothers gave her a book, sir walter scott. they were living in this little house. no indoor plumbing or electricity. they are giving a bust of a great english literary giant to their sister for a birthday present. there is a lot of hope if that. i think what i would like to get to know even more about was the sense of purpose that they had. sounds like a bad pun but high
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purpose. not something ordinary. big idea. we have achieved this big idea. nothing was going to stop them. >> sunday night at 8:00 eastern and pacific on c-span's q & a. >> health care analysts examine telemedicine or telehealth. they discuss licensing requirements coverage and reimbursement of services and policy concerns. the forum was hosted by the cato institute and lasts about an hour and a half.
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>> we have what i think will be a very interesting and informative policy forum for you today. this is referred to as telemedicine or telehealth. i expect to learn a lot from this forum myself. i've written only about a very narrow aspect of the issue, about how international trade agreements address it. basically what happened was this. i was following the canada/e.u. trade negotiations and i saw in one of the legal texts they released that germany had explicitly excluded telemedicine from its commitments, we're not going to liberalize in this area. as a free trader, this offended me, it annoyed me, and i wrote a paper in response saying actually, in trade negotiations government should affirmatively try to liberalize cross-border trade in medical services. but i realize if i were to hold a policy forum just on the trade aspect of it, it would be hard to fill the my own office, so i decided to broaden the topic and
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talk about telemedicine more generally and invite some real experts on the issue, and those are the gentlemen to the left and right of me. so i think we'll all benefit of their knowledge on the issue. this is a new topic, so i think it's probably best to start with the basics and then get into the nuances as we go along. so here is the issue in its most basic form. for most people medical care is still something that always takes place in a doctor's office or in a hospital. we've all had this experience, you go to the doctor's office, you wait a bit, they have these 1970s era paper forms, you fill those out, you wait some more, then they take you to another room, and you wait again. it's pretty annoying. what 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 and when the doctor's available, you have your on line consultation over the phone. of course, i'm not talking about surgery here, but just routine
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consultation. it sounds very convenient. although i haven't done it myself, the problem is in the highly regulated area of medical care, there are lots of regulatory hurdles that get in the way, and there are a number of start-up companies that are trying to break them down, but it's not easy, and it's been a struggle. so our first panelist, renee, is going to give us an overview of this emerging industry, the regulatory barriers that they face and efforts, ongoing efforts to address these barriers. rene is senior counsel at the law firm of epstein, becker and green focusing on health care policy. i came across rene's name when i was reading an economist article where he was quoted. i feel like that's a good sign you're doing something right. we're then going to turn to jeff rose, a senior attorney at the institute for justice. jeff is bringing a fascinating case on behalf of a texas veterinarian who was fined by his state's medical board for
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offering veterinary advice online. among other things this case involves important issues of free speech and although it involves a veterinarian, it potentially has larger implications for the practice of medicine more generally on human beings. jeff is going to give us the he's going to tell us about his current status and process. finally we have josh, an actual doctor. it's nice to have one of those on a panel talking about health issues. but he's not just a doctor, he's also a policy wonk and a former high-ranking government official dealing with healthcare matters. he's currently an associate dean and professor at the johns hopkins school of public health. before that he was deputy commissioner at the f.d.a. and secretary of health for the state of maryland. josh, i suspect, although i don't know exactly what he'll say, will be the voice of caution here saying, hold on there, you free market-loving libber tashes, we need some regulations in place. each panel cyst going to speak for about 12, 15 minutes, then open it up for questions.
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one thing to mention, if anyone has any cell phones, please turn them off. with that, let me turn it over to rene, who will get us started. rene: thank you very much. by way of disclosure, even though -- yeah. even though simon did introduce me i do represent a lot of telemedicine stakeholders, hospitals, health systems, health plans some of the leading telemedicine companies. so some of my comments may be skewed in that direction. i've got a quick power point we're going to go through here. one of the things i always start with is definitional, telemedicine telehealth. they're used interchangeably. some of the major stakeholders can't even agree on what it means. for example, medicare has a restrictive definition -- they use the word telehealth, which involves two-way, real-time,
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interactive communication. it has to be audio, visual. i put this up there just to show you that we can't even agree on a definition. we can't even agree on the terms. i see somebody here from the american telemedicine, so. they use the term telemedicine. on these issues, i look at it very broadly. to me, it's just the delivery of health-related care, services, education and information via telecommunications technology, that's it, very simple for me. these are really the sort three telemedicine modalities. some folks will say the remote patient monitoring is separate and apart, and i think gary and i have talked about this before they consider remote
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patient monitoring separate and apart from telemedicine, not part of telemedicine. i wanted to give you a flavor that there's a complexity here that we really need to pay attention to. we've talked about real time. digital i am annals and audio files are stored there, sent to a provider who can look at them at some later point. remote patient monitoring is exactly what it sounds like. you monitor patients digitally across distances and providers get information and can intercede during that process. so what is driving the issue, what is driving the discussion of telehealth and telemedicine? i will tell you i've been practicing law for 17 years, and this is, i think, for the last two years, the first time where i feel as if telemedicine and telehealth have arrived. what's driving some of this? part is the aging population.
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i think even more important than that is the percentage of those folks that are going to be 65 and older almost 1/5 of the population. that's in addition to all the other things we need to do in the system. this is also coupled with the fact that a lot of folks are predicting a shortage of physicians. you see here, almost 65,000 by next year. it's going to double by 2025, so you've got an increasing population increasing share of aged population, plus you've got the shortfall of positions. you also have a healthcare system that's really in a transition from a fee for service environment, where payers pay for services per encounter, to one i will call income for outcome, where your payment, your reimbursement is based on healthcare outcomes quality, metrics.
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we're in that transitional phase right now with problems that everybody has read about. and also, technology. the sophistication of a lot of the health technology that exists today is incredible, incredible. the question, can our healthcare system absorb, pay for, and adequately manage the risk of this new technology? that's part of the reason we're here. no terms of the telt health 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. b.c.c. research predicts that the global telehealth market is going to reach $20 billion by 2017. global health data says it's going to be $33 billion. bergen estimates we're going to be at $22 billion by 2020. i.h.s. predicts in the united
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states we're going to be in the neighborhood of about $500 million by next year. towers watson, which is one of the leading employer-employee benefits firms, said it could result in $6 billion a year in health savings across the board for u.s. companies. just to give you a flavor of what's happening. we've already talked a little bit about the landscape that's changing. we've talked about the transition from a fee for service environment to one in which we're really, really paying attention to outcome. so what are some of the legal and regulatory issues we face? the first one we always talk about is license, and i'll talk about it for five minutes. i think it's an important issue in that i think there's some ready-made solutions that some folks are attempting. the other thing too, about license sure we tend to look at it from the physician
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perspective, but there are a lot of mid level and other providers that we also have to consider. scope of practice, which i'll talk about very briefly, and how physician-patient relationships are established, and why those requirements may be a barrier. there are some states taking care of that. coverage and reimbursement, it runs the gamut from very restrictive payment approaches by medicare to a mixed bag in medicaid to a better overall picture for private pairs. we probably won't touch on the rest of this given my limited number of time. let's just talk about license. you need to understand that licenses follow the patient. there are medical practice acts all over the united states that governs what constitutes medicine. if somebody is practicing medicine, they need to be licensed in this state. what state do they need to be licensed in? in the united states it's where the patient is located.
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so you can see how this impacts telemedicine, if you've got a duly licensed physician in pennsylvania, for example, who's providing online care for telecare to somebody in north dakota. they need to be licensed in north dakota unless they meet a number of exceptions. we're going to talk about some of the solutions that have been developed recently. this has been a long-standing barrier. one of the reasons i think is if you really think about healthcare 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 doctor is prapping in california. the doctor is practicing in florida, especially urban areas. is there really a difference between the practice of medicine in miami, los angeles, new york, chicago? that's the question that needs to be addressed. there are some exceptions to obtaining a full regular
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license. i talk about some of these here, especially telemedicine license. there's a consultation exception as well, which we don't need to get into, but those exceptions usually don't resolve the overall issue of having to obtain a license in a number of states. the federation of state medical boards which is the organization that represents 70 state medical boards across the country has come up with a medical license compact that only applies to physicians. basically it's a system by which the license portability is made a little bit easier. being licensed in one state makes it easier get a license in other compact states so you can practice. problem here is you still have to apply. it's not like there's a licensure compact, and there's there are some other issues with the licensure compact.
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so far i think six states have signed on to the compact and a part of the compact, according to the federation of state medical boards. they need seven to make this work, so we're almost there. i think another 15 have billed in various stages of the legislative process, so you could see 10 to 11 states being members of the compact by the end of this year. so this is one stakeholder's attempt to address the licensure issue. the other big issue i see -- oh before we go on, i should talk about nonphysician licensure compacts are being developed for nurse practitioners, physician assistants, but nurses already have their licensure compact which i think 24 states are a member of. interestingly enough, the nurse licensure compact, the big states are not members. texas, california, florida are not members of that compact. so it limits the utility of the nurse licensure compact.
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the other issue is scope of practice. how physician-patient relationship is established. the one thing here i want to emphasize is that in order for physician-patient 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, an in-person examination of that patient is required. as you can imagine in the telemedicine encounter, that may be difficult. some states have seen fit to pass statutes which allow that examination to occur by telemedicine, meaning if gict the same information that you can get in the telemedicine encounter that you would get in an in-person encounter, those states say that's fine. the problem is we have not yet developed enough peripheral and
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diagnostic technology to make those examinations to facilitate those kind of examinations yet. what i see a lot of is folks providing telemedicine services without actually doing an examination. there's a video connection with that particular patient, and a lot of folks are concluding that that's enough. that really doesn't constitute an examination by telemedicine. now, the federation of state medical boards again 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 the relationship to diagnose and treat.
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the policy sort of exists in the ether. some state medical boards have see fit to adopt some or all of this, but there's really not a lot of energy behind passage of the fsmb model policy. i will say a lot of other stakeholders have developed incredible protocols. i know the american telemedicine association has an accreditation program for direct to consumer care. the american medical association is developing their own set of protocols. so there's a lot of activity in the space that's 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 thaw under the medicare telehealth benefit, just a little around $14 million was paid out last calendar year. this is out $615 billion in total reimbursements last year.
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i think that represents .0023%. total. basically they don't pay for telehealth. there are a number of reasons. the first being that the approach taken by medicare is that this is really for people in the most rural of counties in the united states. that's the first restriction. there are only certain kinds of provid under this benefit. the patient has to go to a certain kind of facility. the patient cannot be at the home and receive services and have the professionals be paid under this. and last thing is only certain codes are paid for. so if you look at the codes, there seems to be a trend towards assessment and evaluation and psychological and psychiatric services. there seems to be a trend towards having those kinds of services reimbursed as opposed to others. obviously there's a bias that telemedicine is really not suitable for nonurgent primary care purposes. medicaid is a little different. most medicaid programs, and as
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you know medicaid has more flexibility to decide what services they will and will not cover. most medicaid programs cover telehealth and telemedicine in some form. some of them follow the medicare restrictive rules some are more liberal on the issue. if you cover remote patient monitoring, if you cover ford, there's no uniformity. really, there's no logic to what states can and will cover. i think this could change especially if medicaid programs come under increasing fiscal pressure. private pairs, the private pair world is probably in a better spot. a number of states, and gary, correct me if i'm wrong, almost half the states now have statutes in place that require private pairs to pay for telemedicine services if those same services are covered and provided in person.
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basically states are forcing private pairs to cover telehealth and telemedicine. the definition of telehealth and telemedicine and what is covered varies state by state. they don't mandate the same reimbursement levels. i should caution you on that. but the private pair approach i think a little bit better than you have with the public pairs. the other thing, even states that don't have the statutes in place, what we find is a lot of private pairs see a benefit in providing these services, whether they're required or not. i've listed here some plans, and none of them are clients, some plans that are known as being progressive about telehealth and telemedicine services. i'll leave with you that. i will finish by saying that the other aspect to really really pay attention to in the coming years is employers. a lot of employers are very -- they're encouraged by what they
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see and the value they see in telehealth and telemedicine. there's the cadillac tax that's coming in 2018. we can talk about that at some point, maybe during q&a. but employers seem to be incentivized as a way to control the cost of their employees. simon: jeff is going take us through a case study of what actually happens when you provide services online. jeff: one of the reasons why 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 amazing interesting, fresh innovation comes along, and all the mel boards say, well, you can't do that, we need to write 10,000 regulations to do t. we have to subdue it in the regulatory process, because after all, this is america f. we don't
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have a telemedicine statute you better not be doing it. in part, that's because we have a 19th century or early 20th century regulatory model. we have 50 different states, each with their own regulatory boards, and that doesn't even take into account the fact that americans can now talk to people all over the world. there are billions of people who have benefited from the expertise of well educated americans, and it's completely unclear whether or not they can get it. the thing about telemedicine, at bottom, it's just two people talking to each other. that's t. people are talking to each other. one person wants some knowledge that another person has, and they want to share it. at least by reputation, we live in a free country, so what does the first amendment, the free speech clause in particular, have to say about that? this turns out to be a really interesting and one of the most important unsettled questions in constitutional law. let me begin by telling you a story. imagine and this is a true story, imagine a group of
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scottish missionaries go to rural nigeria. they find a stray cat, and they think they're going to adopt it, but there are no veterinarians in rural nigeria. there's no pet food. but one thing they have is a cell phone tower so. these missionaries can get on the internet. they go all the way around the planet and you'll find ron heinz, a retired, physically disabled texas licensed veterinarian, a ph.d. in biology. he spent his career working with exotic animals at a research facility here in maryland. he worked at sea world. he was in private practice. he's just an amazing veterinarian who, after he retired, because his disabilities made it impossible for him to continue 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? how can we make sure this cat stays healthy?
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what are the things we should looking out for? ron and the missionaries are exchanging emails. ron starts doing this with other people too, mostly for free, although occasionally he would charge people a flat fee of a couple of bucks, just to help him cover the cost of keeping his web seethe going. he never made any money doing it. what has just transpired? a disabled 70-year-old man in texas writes an email to a scottish missionary about a cat in nigeria. that's a crime. and ron hines had his veterinary license suspended fined, forced to retake a portion of the veterinary licensing exam and had to shut down his website and stop doing it. why is that? because under texas law you have to physically examine the animal before you can offer any opinion about it. this house-bound was supposed to get on an airplane and fly to nigeria before he could
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offer an opinion of any kind about this cat, and never mind there are no veterinarians and the cat would be completely without care without ron. ron wasn't prescribing medicine or sending drugs he was just offering an opinion, that's it, two people talking to each other. what does the first amendment have to say about that? the first amendment is supposed to protect the right of americans which of ron hines is an american, and anybody subject to american jurisdiction can be able to have useful conversations about the world. the trial court, the federal trial court said you're 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 physical conduct. so ron writes an email that says you should try to feed your cat some shredded pork, the law treats that as though ron hines is taking a disappear pell and cutting a hole in the
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animal. they say by definition it is conduct, even if it's just words. so the first amendment doesn't apply at all. it's not that the first amendment applies and you thoop lose under whatever balancing test there is, it's that it doesn't apply at all. the federal trial court said the first amendment applies to this. so then the state of texas asked for a special appeal, and we went up to the federal court of appeals and in march, the federal court after peels reversed. they said, you know what, we disagree with the trial court, we are going to call that conduct. if you are given someone advice, we're going to call that conduct. so what's going on? well, what's going on is the 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 the time. it leads to all kinds of
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rational bare dwrorse entry, one of the reasons why medicine and other kinds of professions are expensive. it's because lobbyists aggressively create all kinds of occupational barriers. set that aside, supreme court has said that states have broad latitude. the supreme court has also said that the protections of the first amendment are broad. what happens when those two things intersect? the supreme court had an interesting case several years ago that was about advice to foreign terrorists. some american doctors and physicians were providing individualized technical advice to foreign terrorist groups about how to resolve their grievances nonviolently. one was a kurdish liberation movement, and the other one was the tamil movement in sri lanka. these groups were concerned about being prosecuted by the federal government for providing individualized advice, which the federal government considered to be material support to terrorist groups. and so the question that went
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up to the supreme court was, is individualized advice that consists of nothing but speech, you're not sending money, guns bombs or anything, you're just talking to them about the law. is that something protected by the first amendment, and the supreme court said yes, the first amendment applies. it turns out the federal government has a huge interest in suppressing advice to terrorists because it's just kind of fungible. that frees up resources for terrorists to do other things. but the first amendment applies. we actually would try to take that precedent, and we said to the federal court in the fifth circuit, 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 who's just talking to somebody about a cat. the court said no. here's another interesting case about the first amendment that's also from a few years ago. it involved what are calls animal crush videos. there are people out there
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perhaps 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. the question the supreme court addressed is whether or not this applies to a statute that restricts communication in the form of animal crush videos. the supreme court said, you know what, this is america, this might be repugnant speech but the first amendment applies to repugnant speech, so it applies to animal crush videos. what does this mean for ron hines, the veterinarian in texas? what it means is if he decided that he wanted to talk to kurdish terrorists about how to -- let's say they have a herd of cats or something like that and they're using that herd of cattle to sort of 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.
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now, 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 doesn't 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 the animal, no first amendment protection. this is a big issue. the federal courts of appeals disagree. we have a case from the early 2000 neas california that involved medical marijuana. this was before -- california at that point had said that medical marijuana would be ok, that physicians could prescribe it, but it's actually still legal under federal law. so doctors have a controlled substance license from the drug enforcement agency to be able to prescribe drugs.
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it turned out that there are a group of doctors who wanted to say to their patients, look, i'm not going to prescribe marijuana for you, i can't do that. but i'm going to tell thaw actually in your case i think there's a valid medical reason for using marijuana so. it was just -- it was just a conversation between a doctor and a patient. the u.s. court after peels said, you know what, the first amendment protects that conversation, and the drug enforcement agency can't pull your controlled substances license just because you're a doctor having a conversation with a patient about medical marijuana, as long as you're not illegally prescribing it. because the first amendment -- we cited it extensively in the fifth circuit. but on the other end of the country, in the 11th circuit, there's a case that's going on right now that's sometimes called the gglocs versus docs. it forebade physicians from asking their patients about whether they own guns, keep guns loaded.
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sometimes you go to the doctor and the doctor might say, are you wearing your seat belt, because accidents actually kill people. accidental gun discharges or suicide by gun those are legitimate public health issues so. anyway, the gun lobby didn't like the fact some that 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 aren't allowed to ask people about guns. a group of doctors brought a lawsuit and said, look, the first amendment protects my right to have a conversation with a patient. just because we're in a doctor-patient relationship doesn't mean that we have completely surrendered our free speech rights, and the government can tell us to say and do whatever we want. the 11th circuit court after peels said nope, when a doctor is having a conversation with a patient, even if it is just a conversation, you're not touching them, not doing anything, that is conduct to which the first amendment doesn't apply. you may notice that the medical marijuana issue is kind of a liberal issue, and the ninth circuit court of appeals on the
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west coast kind of a liberal court. on the liberal issue, they decide that had the first amendment applies. the 11th circuit is conserve tough, and this was a pro gun thing. coincidentally, the conservative court decided that the first amendment didn't apply when it was a conservative issue. but we have square disagreement among the federal courts after peel, a disagreement that was exacerbated by the decision in the vet speech case that just came down, and so the supreme court actually has to step in. 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. we're in the process right now of writing our petition to the supreme court, and this is actually the perfect case. what's going on here sufficient ron hines talking to people, generally speaking, on the other side of the world about animals. this isn't the most intense
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telemedicine context you can manl. this is right at the edge. 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. this is the perfect clean case for the supreme court to take. the other thing too is that there are some cases making their way through the court system right now that have to do with what's called repair active therapy, which is providing psychological counseling, generally speaking, to minors who are gay or say they're gay and their parents don't like it, so they send them to christian-based psychologist. there's a movement that says the first amendment should protect the right of the therapist to engage in gay conversion therapy. one of the great things about the ron hines case is that it is just about people talking about animals. it's not about gay rights or guns. it's not about medical marijuana. it's not about any of these hot-button cultural issues t. presents the case perfectly in a benign context where the supreme court can address the
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first amendment question without worrying about making collateral statements that might have ramifications in other areas of the law. so fingers crossed we're going to try to get the supreme court to take this case and we'll get a decision that will tell us whether or not it applies to couppingsal licensing, and this will have implications far beyond the practice of veterinary medicine. it will be psychology, it will be law it will be financial advice, all kinds of things that can be done as a result of the internet. so thank you. simon: thank you very much. it's a fascinating case, and i will keep following it. i'm hoping for a supreme court decision, hoping it goes a certain way. but even if it doesn't, it's something fun to talk about. let's go to our last speaker now. i'll turn it over to josh. josh thanks so much. i really appreciate the chance to be here. i appreciate the invitation from simon and i thought both of the presentations were terrific.
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really interesting. i'm a little bit in the "sesame street" segment where they say which one doesn't belong. you're supposed to pick it out. that's me a little bit on this panel. i'm a physician, not a lawyer. identify been appointed to city state and federal positions by democrats, and so i'm deproming a slightly different perspective. i do appreciate that cato's internet password is obamacare saves lives. i'm just kidding. i thought that change of the announced, a little joke there. i actually started reading simon's paper, and i said i don't think there's going to be a thing in here i found attractive, and i found it interesting and provocative. i thought both of these presentations were also very interesting. there's a lot to agree with about the points that have been made. let me just say that, for me,
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telemedicine started coming 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. it was intensive monitoring. it wasn't like your phone calling a doctor and showing them your rash. it was a hospital situation. i had never seen anything like that before. they go, actually there's a doctor watching all the monitors. we have one nurse or a couple of nurses here that they will get a call from the doctor if there's an issue they need to go check on. it's better for them if the doctor was down the hall. i thought, is this a good thing? is this not a good thing? i couldn't get my head around it. and i think that when it comes to telemedicine, it's a similar question 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 expo
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station of patients and consumers and protect public health and the answer oftentimes, having worked with different levels of government, is yeah, it's both. there's no simple one or the other. it depends how well it's done. in this case i would say that 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 the nurses fought and the nirs and dentists. there was a huge fight in maryland between the physical therapist and the acupuncturist over dry needling. dry needling is what physical therapists want to do but acupuncturists say that's unlicensed practice of acupuncture, and i decided at one point to do a public comment period.
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usually we do public comment period, we do like 100 comments, and i got over 1,000 comments on all sides of the issue, very revved up. i picked up my 8-year-old from school, and he said, dad what's dry needling, and i said why do you ask that? he said, well, because my gym teacher gave me this letter to give to you. i used to say that it's not a safe place to be between the dry needlers and the acupuncturists. at one point, i actually proposed legislation in the state of maryland that will take these feuds out of the medical boards and all the litigation, give them to -- 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 that, in my mind, nobody wanted that. they just wanted to battle it
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out. so i do -- i absolutely concur that there are -- you cannot assume that just because the medical board or a dental board or a different board has a particular policy that it's going to be the right thing for the public interest. the flip side is they do provide very important public health protections. particularly when people are sick. they're not well informed consumers. people who are sick are very vulnerable. there is an unbelievable record in the united states of people getting taken advantage of when they're most vulnerable, when they're sick, you know, 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. i used to interview. i interviewed all the medical board candidates, and we set up a process for interviewing all
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the other candidates, and i said i only have two questions. number one, will you put the public interest first even -- if there are people who shouldn't be practicing, it is your job to get them out of circulation and make sure you're protecting the public. and number two you'll be reasonable on scope of practices, because you know, the fights that happen were just totally all-consuming when they happened. so how do you draw the balance when you have regulation like this? if you're not going to be someone who just thinks all regulation is wrong, and if you're not someone who thinks it's all right, and you're going say there are some things that make sense, some things that don't, how do you do it? how do you maximize the benefit and minimize the risk? the answer is you have to set up an approach, a process that has a public interest as the bottom line. and i don't think that the boards themselves can really play an effective role in that. i think that there are some state models that bring in
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external people to think those things through. those are good models, as you're thinking about global models figuring out where are the opportunities to do things that really are in the public interest, to get -- you know, it's not just, i think timing, but it is not just that the u.s. health professionals are treating people around the world, that 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 risk by having an assurance or partnership between different regulatory entities. i think that that's 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. i've seen it. i've even seen it on very controversial issues. we actually regulated abortion facilities in maryland. when we came out with our
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regulations, we had both the right to life groups and the pro-choice 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. here's where i think i really respect the position on the first amendment and how it relates, and let me just react to that for a second. i think that in general, my view is that it should be the public interest that's the real -- you know, is the north pole. it should not be an ideological view of the first amendment. at first i thought jeff was saying well, look, if it's speech, that's it, we got to allow t. then as i listened, i think he was saying it's just whether the first amendment applies, and there may be a appropriate test put on. i'm very familiar as a pediatrician with the case in florida asking about guns. i do understand the fact that
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there are speech considerations. i think that if there were a way to say that -- what is the balance? i think jeff may be focused on getting the first amendment to apply because that's the threshold issue for him. i'm more interested in what's the balancing test that 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 sense the pediatrician, along with my professional association, that it can be very important to ask about gun safety for the very reasons that jeff said, and there could be -- the standard that would an plied is not just are they words coming out of someone's mouth, but does it make sense? on the other hand, on the therapy that has been totally discredited by a profession, that such as repair active therapy, which has essentially no support within organized and
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evidence-based medicine that the public interest wouldn't, would favor a regulation in that area. so for me, i can see that there is a yardstick that could be done that it's not so much whether the first amendment applies or not, but how you would apply an appropriate test to get regulation that maximizes the benefits to the public and minimizes the risks. 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 it's totally ream 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 an interesting progress as technologiee involves in healthcare. thank you. simon: thank you, josh. thank you to all the speakers.
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i think those are all great presentations, gives use lot to think about. i want to open up questions now. let me start getting yours ready. i think this question, and i don't mean to put out spot rene, and others, feel free to answer it too, but i think this question is mostly for you, rene. i don't know to what extent you've thought about this. i think both josh and jeff alluded to there are international aspects to this, and that's what i wrote about as well. i'm 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 are doing things too. rene do 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 somebody is going to be trading these services internationally. if we're going to put up -- if the u.s. is going to put up barriers, then everyone else is going to go ahead with this. do you have any sense behalf the rest of the world is doing with this right now? rene: a little bit. i think that we're all sort of in the same boat. a lot of this is new.
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we're wrestling with a lot of clinical, political, and other issues as well. i will say for example, in the e.u. licensure follows where the physician is located, which seems to make more sense and which facilitates the greater access to care, because physicians don't have to worry about being licensed where the patient is located. but a lot of other areas have not yet had the fully developed regulatory approach the united states has. one thing i will say is that sometimes i tell my clients, have you thought about starting this somewhere else outside the united states? you have your regulations haver to about, where you have fewer political considerations. i mean, we heard about the board, and i think doctor, you sort after luded to this, there is some protectionist bent to some of these boards as well. i think we're generally all on the same boat, but i would say that given the way our laws are -- the way our laws are
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enacted, the way regulations are promulgated, the sub regulatory guidance we have both at the federal and state level, all the various boards that you have to deal with if you have a regional and national network you have in mind and want to develop, it's hard to do in the united states. simon: let me open it up to questions now. a couple of instructions. please wait to be called on. raise your hand if you have a question. wait for the microphone so everyone in the room and audience can hear and announce your name and affiliation. with that, any questions? audience member: wonderful presentation. the question now is how are you going to do or what should be done in the medical sector or
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in public one is like -- just the equipment or internet or some kind of obstruction basically, and the patients, ok and then you have regulations, but currently there's also a trend -- as i say, maybe even more related to operation, and they are now promote occupation. this is very subjective. and if the people complain to government agencies and they ignore the complaint really, what they say is they are not
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in the best interest of the public. so how are you going to regulate a government agency rather than healthcare? josh: to your first point about security, i think that's extremely important, and i think that is the potential for all four regulatory standards, because even if you could work it all out that there's a great dermatologist in germany who is perfect for your kind of rash and everybody believes it's appropriate to do over, but suddenly, you know shows up on the internet and there's your pictures because it's been stolen, that's not good at all. i do think one of the things that's very important is to have strong security standards and enforcement of those standards so everybody is participating and at least able to have some level of competence about privacy. i think that's a really good
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point. the issue about -- medical board's jobs are very hard. boards in general are very hard. some of the things are very easy. there's something that's been horribly done, horribly wrong, and there needs to be discipline or even someone losing their license. but a lot of them are in a gray area. it's very important for boards to be as prompt as possible be able to at least, at a certain level, be transparent about its approach to different issues. and then usually there's recourse to the courts if boards don't do, you know, for both the provider and for the patient in the case of a totally egregious decision, occasionally the courts will pick that up. but there's enormous authority and i've seen very unhappy practitioners who thought they were being treated unfairly by the board and very unhappy patients who felt like they were mistreated and the board didn't really listen to them. you know, as the health secretary, i couldn't get
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involved in every case. you have to appoint very good people. you have to try to orient them as well as possible. it's sort of like, you know, a judge has to make a tough decision sometimes, and then there's 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 appeal. simon: do you know anything about security issues, rene? rene: it's very important, but i think we have other laws and other requirements. i mean, the e.u. has an incredibly sophisticated security regime. while security is an important issue, i think they're addressing a myriad of security laws that most developed countries have. simon: question in the back. start with the way back, and then a couple in front and nearby. audience member: my name is kyle gibson, a former cato intern working with simon.
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i think i see bill in the audience. happy and pleased to see that this issue has been brought to life. when i was doing research on this, a lot of the -- the biggest challenge seemed to be licensing within states to practice medicine. my question is open to the panel. if the day comes in which licensing is eliminated for states to practice across state laws do you see this phenomenon spilling over to other industries? what i'm thinking is the practicing of law. right now i'm 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. i just wanted to get your thoughts on that. simon: does this set a precedent for other industries? josh: yes. if the first amendment applies to occupational speech which
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it should, then it will be a precedent that applies outside the context of medicine. as josh is suggesting, how it applies will be different. the particular test that we would use in the first amendment likely, would be something like the test for commercial speech, which represents a constitutional interest that should be protected, but maybe not as big a constitutional interest as in other context, for example, pure political speech. what would this mean? in the context of medicine, appendicitis in florida is the same thing as appendicitis in alaska. but on the other hand, they actually have different laws, and they might actual have the different banking laws that are peculiar or different real estate laws for whatever reason. and 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
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just about everything. financial services seems huge. that should be there. the practice is something that is big, psychology and maybe life coaching and diet and nutrition, those are the kinds of things people can actual duly from a distance and do much more cheaply, much more conveniently if it were possible to do it across state lines. josh: let me clarify i do support medical licensure by state. the reason is there's a strong history of medical licensure by state. in maryland, we did a lot to improve the function of the medical board. there's some terrific doctors who are serving on it and they did a great job clearing a backlog and taking much more rapid action while they were expanding procedural safeguards for doctors. it's a really hard thing t. goes to my previous question and i think that it has credibility in part because it's relatively local. we have experts from the university of maryland, the chair of the board, johns hopkins, and so if you're taking someone's license away,
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you're doing something like that, it helps for there to be an internal credibility within the community about the fact that the medical profession is doing it. it's not some, you know, external national global board of doctors. it's actually a local board. so i think that getting the board is correct. what relationship are between boards and the kind of compacts rene talked about, i think that would be the right area to pursue. i would say that if 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. i see it's different in the case of the veterinarian, because the case of the veterinarian is about sort of the definition of how to practice. you know you should have to do a visit before you do something. i mean those sorts of things i
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think are like trying to regulate the practice within a place that you're doing it. whether or not i think there's an appropriate role for the first amendment or other things to say, actually you don't need to get licensed in this other state anyway, i would probably have much more of a conditioner about that, because i think that there's a huge public health value to having well run medical boards at the state level. but i see that as a little different in the case of what is under the jurisdiction of the board and how the board may be going about its work within a state. simon: that's true. jeff: as a constitutional lawyer, the mere fact that free speech rights are inconvenient to the government is not a constitution to ignore them. even if they create what might be like a sub optimal regulatory state, that actually may what about a free country tolerates. josh: i appreciate that. as a pediatrician, i would say
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-- i gave a speech at one point in law school where i said, i'm familiar with the argument that , you know, 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. jeff: fair enough. rene: the only sort of talking about the boards aren't most boards complaint-driven, doctor ? number one a lot of boards are underfunded. the question i always have is, are the boards the best way to regulate the practice of medicine given those two things you just mentioned? josh: i think the question is, certainly there are boards that are underfunded, and i think you could look at a lot of front-page stories to say that they're not doing as good a job as they could do. it's complicated to think of how you would do better other
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than to improve boards, like we were able to do i feel like in maryland and other places. because of the local nature of medicine and the history that's there, i mean, i guess in this respect, maybe i'm the more conservative person on the panel. 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 that there are local standards of care for certain things. so you know, -- rene: not to interrupt you, but aren't those disappearing over time? josh: that's probably a debatable proposition. i think the people who would like to see some of the differences appear, but it may be that, you know, if you have a board that has their group of
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experts in a particular field from one part of the country, they don't realize that there's a unique different kind of disease or history or treatment or something that's going on somewhere else. you know, i think that -- i have written about the medical board, so i'm not in any way trying to defend them. on the other hand, it's not that easy to think of a national medical board that would be able to do that much better, i think. simon: open it up to other questions. i see a couple in the back there, maybe the guy closest to you, and then in front of him and then to the right. audience member: thanks to the cato institute, great work. i enjoyed the panel. my question may not be important, but i was talking about the v.a. healthcare system. they're trying to talk about telemedicine and doing some things that would be at the federal level, but obviously the first amendment i'll admit to being an attorney, but it
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will also be done at the local level. particularly with rural veterans. it's a major issue in the country right now. i wondered if the panel might opine about that. simon: anyone know anything about that? josh: there are parts of the country that are in desperate need to access of care. veterans are particularly in need of mental healthcare and other services that aren't available in all places. 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 in access to care and quality problems at certain places, and can you -- is there a strategy that involves more telemedicine that can address both of those at once? i think that all those are very fair 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,
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not some arbitrary measure of speech, but are veterans getting healthier? rene: sometimes i think we take a one size fits all approach, it's just telemedicine. but i think we can all agree for example, in telemental care, you don't need to lay hands on people to be effective. it's really about communication. i would think for subbed is specialties like that, telemedicine is a great fit. and ought we not treat that differently than telecardiology or something else? maybe we need to start thinking about this in a sophisticated way as opposed to one size fits all, and everything fits under this umbrella. jeff: it's certainly true that doctors can say something to patients short of an actual diagnosis. to ron hines, people would write him and seay been to two different veterinarians, given me two different diagnoses and could you just look at the files and just give me your
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opinion and we can talk through it, help me make a decision, because i have to make a decision. and ron is the kind of person who's got a great deal of experience and can help out. with respect to people who are in rural areas one of the things that ron got in trouble for is that there was an impoverished double amputee in main man who was living by himself, and the only thing he had was his beloved dog. his dog was sick. his dog was dying. and ron was talking this guy through certain things to help alleviate his dog's 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 some initial help over the phone and reported ron hines for doing that. that is just like pure economic protectionism. there's no rational person would say that this impoverished double amputee who's not going to veterinarian who's getting some free help from a guy in texas, that that should be
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stopped. it's ludicrous. but anyway, that's one of the >> another question. >> hi. pat michaels. maybe to the panel in general. it has to do with the complexity about the ultimate regulatory regime. i can see, if you put ah he art monitor on a person, a remote physician can read that without seeing the person.
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you cannot to the manipulations that are required in order to come to a diagnosis. it seems to me, given these possibilities, we may wind up with a group of folks having to go through the entire code manual to decide which one requires a personal visit and which one does not. that will entail all kinds of special interests. how do we prevent this from becoming 10,000 pages of regulation that nobody understands? >> sounds like you have seen those regulations on some other issues. >> i am thinking of a famous person m.i.t. >> i think you're asking a very good question. this is partly about the
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approach to regulation. how do you strike a balance that is not such a kind of jerry rigged balance that is impossible to apply and makes things frustrating for literally everyone. that can happen as part of regulation. 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. you could go through -- come up with the most complicated flow chart in the world or basic criteria that are fair and reasonable and april to be applied. the institute of medicine 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 a reasonable brings people together across an issue and then they'll say this and approach in the public
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interest. nothing is perfect but this is the best we can do. in my opinion it's not -- i used to think a lot about stakeholder groups versus expert groups. we'll get a stakeholder group together and each one is going to go back and check with their own group. that would be -- people would say to me when i'd hear about this, your next career is not as professional poker player because i would make a face just like you. how are we ever going to get to a reasonable process? -- outcome, even one people could live with if everyone feels beholding to their group . but people aren't representing their group and given very clear charge and you have a great person leading it you can get reasonable things, and you're striking a balance.
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so i think it can be done. you have to think of organizations that can do it and then you give them a challenge. >> another possibility, maybe we don't need a multitude of combplex rules. maybe the sumle rule is the doctor has to exercise professional judgment. in ron hines' case, if the animal -- let's say he examines an animal. he is legally authorized to euthanize the animal, amputate a limb, perform surgery, provide powerful drugs based on his exercise of professional judgment. that's what being a texas licensed veterinarian means, and there are plenty of instances in which he would talk to somebody via the internet and sayer -- and he would say you are presenting questions i can't actually give you good advice. it seems to me that the nature of your problem isn't amenable to a telemedicine solution so you have to see a vet. so rather than think we have to
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eliminate every single permutation of the doctor-patient relationship to regulate it, we should say when you have passed a threshold requirement of being a doctor and we have invested in you the authority to exercise your professional judgment, then engaging in responsible telemedicines is just an extension of that authority. and that seems to make sense. i said this to the court repeatedly. if dr. hines can do 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 doesn't make any sense. there's no rational conception of a doctor and a patient the in which that makes sense. >> the issue, though, is where the regulation is going to happen. so, let's say the animals were in another state. he is taking -- charging for the advice that he is giving, but the other state has basically no ability inside that state to challenge any problems if there were serious problems.
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so there's at least a -- i think a clear risk to consumer protection if you were to say, you're a doctor in maryland, it's up to your judgment whatever advice you want to give, medical advice prescriptions, anything on any topic. my license is -- i can take care of big people, as we call adults in pediatrics, and then it's all back on the maryland medical board, where they can't easily go somewhere else to evaluate the care or see what is actually going on. that strikes me as a framework that could be risky to consumers. >> you might have -- there's this sort of concept of law that if you enter someone's jurisdiction and you do things that are tortious you can be held responsible. if we had these compacts where we recognize reasonable interjurisdictional practice
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and you would say that if i'm a doctor in texas and i'm talking to somebody in maryland, then by virtue of this compact or just by operation of general principles of jurisdiction, if i say something or do something that results in harm to the patient i just subjected myself to the jurisdiction of that whatever. i don't know how to work it. you are the expert. but i just -- 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 in-person context, and i don't know why we're terrified of. -- of them being able to exercise similar reasonable judgment in the telemedicine context. they still have medical licenses but i -- >> you're conflating this two things you have to tease apart. if i it were all within the same state, i would be very much, much, much closer to commerce. -- here position. it is when you make it harder for people to be harmed, you wind up with the potential for
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-- >> >> another question from the middle back. >> a lot of the telemedicine regulation could be construed over interstate commerce. one physician from one state talking to a patient from another state. so should states be allowed to regulate that type of commerce? >> the constitutional lawyer and the 10th amendment and all those issues. >> the question is whether or not when a state is attempting to regulate the movement of medical advice, for example, or occupational advice across state lines, what does the dormant commerce doctrine which is that states can't create unreasonable barriers to economy. it's not a popular doctrine in
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-- among the supreme court but not very clearly litigated and there's some federal appellate law that says that what the dormant commerce clause is worried about is the movement of goods, and if it's just cash or advice -- it may not actually be something moving in interstate commerce. not tenable and probably be disgrandmas about it, but -- it strikes me that it would be ultimately be litigated. the answer in constitutional law is always, maybe. i can't give you a definitive answer. >> i saw the guy in the fourth row there. >> over there. >> victor from the institute of
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justice. please weigh in as you see fit. is it remotely realistic to expect any sort of telemedicine to be enforceable. i see a host of problems if we set up this vast regulatory framework, assuming there will ever be a consensus on it, in which you would have to record for instance, skype conversations with your doctor or -- i see like 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 any regulatory framework around telemedicine really ever be enforced? >> i could see your nightmare scenario and raise you another
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nightmare scenario but i won't do that. i think renee layed out a framework, and i would be interested in his view and i would be interested if it could be picked up. you have compact where people can see patients across the states. if that were facilitated, then people could see patients across states and enforcement would come if somebody stepped across the line, there would be a complaint, the medical board would then be able to take action. i don't think there's any necessity that there be some kind of crazy amount of surveillance. doctors have an obligation to take medical records just like they do in-person medical practice, and if i was a patient, you're the doctor in another state and one of these
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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. might be a hard one to make but then you'd have a framework because you would be licensed in your state and my state and the process will play itself out. >> i think the thing with compacts everybody has to remember, you're only as strong as how many staters actually part of the compact. so when there's a licensure compact, great idea, simple process. your license in one compact state you're deemed to be licensed in the other compact states. some exceptions apply. the problem is if you look at the map of your compact, a lot of biggest states are not so you're with the situation least populace states are part of the compact and others aren't, and the states that decided to be part of the physician licensure
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compact, states like -- i think it's west virginia, one of the dakotas, idaho, california isn't going to do it. texas isn't going to for all kinds of reasons. so compact is part of the problem but they're only as good as how many states are part of the compact. >> there's the question of how easity is to get it done, and then the question whether it would work if you could get it done. so not that easy to get rid of state medical boards either, but while your in the system of state medical boards, the fact there are some efforts moving forward, it could be that is the most likely, even though they're all somewhat less likely way to overcome the professional problems we're talking about. >> i don't get a sense that there's a -- there's heavy support for a national licensure system, a federal licensure system on the hill.
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in fact it's a nonstarter. >> i had been missing a question on the left. >> i apologize. i cannot stand up. i'm kind of swimming in equipment over here. i have two questions. the first -- if we can talk about the impact on healthcare jobs that telemedicine will ultimately have. you can talk about how on one hand there's a shortage of physicians, on the other hand telemedicine is clearly moving toward remote monitoring. who will be monitoring all that data, and it's not necessarily a full-time position. so i'll start with that question. >> that's a great question, but i don't think my professional training gives me a great answer it to because i'm not an economist.
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there are obviously going to be implications. i guess what would i say is you can look at the country and see a mismatch between need and resources for medical services and the goal would be, with a good telemedicine program, would be to address that mismatch so you can get more services to people who need and get better health. that would allow more flexibility where people could live. in terms of what that i would do to physician work force in different places, i don't know the answer to that. >> i think it's fair to say it would be pretty disruptive and maybe your view depends on what you think about disrunnings and many of us love to have the economy disrupted and have their definitions. you had a second question. >> this is directed toward the first speaker.
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the definition of television was changed to include video teleconferencing but not audio. how much weight does that hold? and the degree and how that might impact patient care. >> you're absolutely right. they redefine telemedicine on and left audio only out. a lot of states have their own definition and that does not include audio only. the definition is only important in that the msmb policy addresses telemedicine so anything that falls outside of that the rest of the model , policy does not apply. you talk to a lot of folks they'll tell you that patients -- a lot of patients prefer
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phone. it's more convenient. it's much more accessible to them. you don't need broadband. and a lot of employers will tell you that when they give the choice to their employees whether they want to receive services by phone or by audio video, a lot of them choose phone because of the convenience factor. now, having said that, i think that even the -- some of my clients in the business will tell you, you can't do everything by phone and there are certain things that physicians will not do be phone and will refer you pack to your primary care physician. so the phone can't solve everything, but i think the people i speak to the people i represent, the employers i talk to, would like a more expanded definition of telemedicine to include audio only. that doesn't mean the physician doesn't have access to the patient's medical records, a questionnaire. so in other words, it's not just
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a cold phone call without information. >> we have time for one more question. >> thank you, jeff pearlman, lawyer off the street. doctor, you indicated that you supported mr. rhodes' position on consumer affairs, i guess, as long as it was limited to one state. i think that's what i understood you to say. so is it true that if i live on western avenue, which is the borderline between maryland and d.c., anything that happens anywhere in the district, if i want to call -- if i'm in the veterinarian and i get a call from the amputee that it's okay for me to answer, yet if my friend of 40 years, who is also an amputee, lives across the street in maryland and i cross the street to answer his question about his dog, that the suggestion by mr. rhodes that
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could result in a -- that could be resolved by a cause of action in tort law, that wouldn't be adequate. >> i understand the question. i appreciate it. first of all, my main point is it's a different issue within the state versus between states and i think that to the extent what jeff is saying there is a first amendment issue in a doctor-patient relationship and needs to be balanced in different ways. across jurisdiction, it has a lot to do with enforcement. we're talking about charging, i would imagine. somebody is getting paid for something. i do not think in all the allen sitting it is that much of the position for someone to get
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license in more than one place. they get judged according to the system we've had in this country or regulating professionals. i see value in that. i do not think the fact there are always going to be cases that are across the street with any law. is it fair you can do one thing in one state? it is the same thing here. if you believe there is value for allowing local regulation in medical practice, you have to live with the borders that are reflected in that. if it was a crazy hurdle, it really isn't. if you are living on the line, you should be licensed in both places. >> last i heard, only 6% of
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physicians are license in three or more states. we're talking about this movement underway, most practice is still local. the question becomes are the numbers so low because of the administrative burdens in having to apply for a license or because it reflects the reality of medicine on the ground? >> i think we have to wrap things up. we're going to adjourn for lunch . let me thank the panelists and give them a round of applause. enjoyed it very much. hope you did, too. [applause] >> on the next "washington journal," a discussion to increase broadband access with
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the fcc's lifeline process. then richard williams and michael jacobson will look at regulation of the food industry. later, the justice department's decision to indict 14 officials with fifa. those conversations plus your calls, tweets, and e-mails live on c-span. sunday night influence and image. the personal lives of three first ladies. sarahstrong belief -- sarah polk often help her husband may decisions.
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sec retailer enjoy telling people -- zachary taylor enjoy telling people she was praying for her husband's opponent to win. sarah polk and abigail fillmore, this sunday night on "first ladies influence and image." from martha washington to michelle obama, sunday on american history tv on c-span3. and the new book, "first l adies." it is available as a hardcover or an e-book through your favorite bookstore or online bookseller. >> george the tacky has officially launched a presidential campaign, holding a
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kickoff event in new hampshire. he joins the field which includes marco rubio as well as ben carson, my cut to be -- mike huckabee. this is about 30 minutes. [applause] >> whoo! george pataki: thank you. thank you for 41 years standing on my side and helping us one of the greatest families that i'm so proud of. thank you for being here. you are the reason i am here this morning, to help your futures the better futures. [applause]
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mr. pataki: as i look around this room i see so many friends, from peekskill in new york state, from texas and illinois and of course from across new hampshire, thank you all for being here. [applause] mr. pataki: many of you helped me get elected as governor of new york three times, and you are here again. thank you for your loyalty. [applause] [speaking spanish] mr. pataki: we are here in exeter, new hampshire, birthplace of the republican party, abraham lincoln's party
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who saved the union and brought the promise of freedom to all americans. teddy roosevelt's party who fought for the square deal. and ronald reagan's party, and in the transcendent value of freedom, the freedom that has given us the greatest country in the world has ever known. the freedom that a man named amos tuck founded that party right here in exeter, new hampshire. the same freedom is at risk from an ever more powerful and intrusive government in washington. it is to protect that freedom for us that i stand here today. [applause] mr. pataki: it is to preserve and protect that freedom for future generations that i speak. it is to preserve and protect
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that freedom that this morning i announce i am a candidate for the republican party of the president of the united states. [applause] mr. pataki: thank you. [applause] mr. pataki: thank you. mr. pataki: thank you. [cheers] mr. pataki: thank you. thank you. when people think of new york, they generally think of new york city, and i understand that. but my upbringing was quite different. i grew up on a small farm in a small town on the hudson valley called peekskill, new york. my four grandparents were immigrants that went through ellis island. peekskill was not in its money
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but in its people, black and white, christian and jew, rural and urban at the same time. we were not wealthy, well-connected, or well known. and yet, every one of us growing up in that small town believed in the american dream, hard work, and believed in ourselves. we knew that if we dreamed something we could do it if we worked hard, studied hard, had faith, family, and friends encouraging us, nothing could be beyond our reach. we believed in the american dream, and it was real. my father was a mailman. when he went to first grade he could not speak one word of english. no one ignored him or lowered their expectations. instead, they helped him learn the skills he needed to succeed. my mother had to turn down a scholarship to cornell because it was the depths of the depression and she was the only
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my mother is 99 and at home doing great, and she is watching this live on cspan. mom, thank you. [applause] mr. pataki: they never saw themselves as victims. they were americans. although they might not have had every real opportunity for themselves, they knew that their children could accomplish anything. my brother and i worked on our farm as kids. when i was in college, during christmas and summer vacations i worked at the fleishman's factory with my cousin and in the evenings and weekends we would come home and work on the farm. for my dad, working two jobs was the norm. he would leave the house at 5:00 in the morning, deliver mail
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during the day, come home and work on the farm until it was dark. if the phone rang in the middle of the night, he would answer it as captain of our volunteer firefighters. it wasn't always easy for them. today, my brother is an astrophysicist and i'm a candidate for the highest office in the country. [applause] mr. pataki: this is the promise of unlimited opportunity america held for my family and for me. it is that promise of unlimited opportunity, that belief in america which i want to restore for every family and every child and every community in america today. [applause]