“Lone Star” Joins the Rest of Nation as Texas Passes New Telemedicine Law

by Foley & Lardner LLP
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On May 12, 2017, the Texas State Legislature passed SB 1107, a law expanding the use of telemedicine in the Lone Star State. The bill is now on its way to Governor Abbot’s desk where he is expected to sign it into law. Specifically, SB 1107 changes prior Texas law and now allows physicians in Texas to use telemedicine to establish a valid physician-patient relationship without the need for an in-person exam.

The change is the product of months of negotiations between various medical boards, regulatory agencies, and industry groups and may finally bring an end to the longtime telemedicine standoff in the Lone Star State.

Highlights of the new law include the following:

Definition of Telemedicine

“Telemedicine medical services” is defined as health care services delivered by a Texas-licensed physician, or a health professional acting under the delegation and supervision of a Texas-licensed physician, and acting within the scope of the physician’s or health professional’s license, to a patient at a different physical location than the physician or health professional using telecommunications or information technology. The law also defines “telehealth service” as a health service, other than a telemedicine medical service, delivered by a health professional licensed, certified, or otherwise entitled to practice in Texas and acting within the scope of the health professional’s license, certification, or entitlement, to a patient at a different physical location than the health professional using telecommunications or information technology.

Doctor-Patient Relationship

A physician may establish a valid doctor-patient relationship solely via telemedicine without the need for an in-person exam. Under the new law, a physician may provide services to, and establish a physician-patient relationship with, a Texas patient through the following telemedicine modalities:

  • Synchronous audiovisual interaction between the practitioner and the patient in another location;
  • Asynchronous store and forward technology, including asynchronous store and forward technology in conjunction with synchronous audio interaction between the practitioner and the patient in another location, as long as the practitioner uses clinical information from: a) clinically relevant photographic or video images, including diagnostic images; or b) the patient’s relevant medical records, such as the relevant medical history, laboratory and pathology results, and prescriptive histories; or
  • Another form of audiovisual telecommunication technology that allows the practitioner to comply with the standard of care described in the law.

Standard of Care

The standard of care for a physician delivering care via telemedicine is the same standard of care as when delivering in-person services. The rule prohibits any other agency with regulatory authority over a health professional from adopting rules imposing a higher (i.e., more restrictive) standard of care for telemedicine services.

Remote Prescribing

Note, rules on prescribing via telemedicine remain to be addressed in full. This is because the law requires the Texas Medical Board, Board of Nursing, Physician Assistant Board, and Board of Pharmacy, to jointly adopt rules and publish FAQ responses relating to defining valid prescriptions for telemedicine exams. Any such rule, however, must allow for telemedicine-based doctor-patient relationships. The law expressly prohibits the use of telemedicine to prescribe an abortifacient or any other drug or device that terminates a pregnancy.

Commercial Insurance Coverage

Texas is among the majority of states to have enacted a telehealth commercial insurance coverage law. Texas’ coverage law prohibits a health plan from excluding a telemedicine service from coverage solely because the service is not provided through a face-to-face consultation. The new statute narrows the Texas coverage parity law by excluding coverage for a telemedicine or a telehealth service provided by only synchronous or asynchronous audio interaction or facsimile.

Display Payment Practices

Every health plan must adopt and display its policies and payment practices for telemedicine services in a conspicuous manner on its website. This is designed to promote clarity in telehealth insurance coverage.

Follow-up Care

A physician providing telemedicine services to a patient must provide the patient with guidance on appropriate follow-up care.

Medical Records

Within 72 hours of the telemedicine encounter, if the patient consents and has a primary care physician, the telemedicine practitioner must provide the patient’s primary care physician with a medical record or other report containing an explanation of the treatment and the evaluation, analysis or diagnosis of the patient’s condition.

Mental Health

The statute clarifies that the provisions of the new law do not apply to mental health services.

Passage of this new legislation is welcome news for telemedicine companies and health care providers looking to offer telemedicine services in Texas. We will continue to monitor Texas for any rule changes that affect or improve telemedicine opportunities in the state.

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