After many years of heated and contentious debate, and opposition by the Texas Medical Association and the executive director of the Texas Medical Board, Texas has significantly revised its telemedicine statute to permit the routine provision of telemedicine services addressing litigation brought against the Texas Medical Board and reflecting the changing consensus regarding telemedicine services. Historically the Texas Medical Association objected to physicians providing telemedicine services to a patient the physician does not know or has not seen in person and to physician assistants or advanced practice registered nurses being allowed to provide telemedicine services. Under SB 1107, signed into law on May 27, 2017 by Governor Greg Abbott, Texas physicians and practitioners may now provide health or medical services to a patient at a different physical location using telecommunications or information technology.

The Texas Medical Board had required practitioners to use “advanced telecommunications technology” that allowed the practitioner to see and hear the patient in real time. Under the new legislation, a practitioner must:

• Use technology that provides synchronous audiovisual interaction between the practitioner and the patient;
• Use asynchronous store and forward technology including technology that allows telephonic only interaction provided the practitioner uses certain specified clinical information; and
• Otherwise comply with the applicable standard of care.

The technology requirements are not applicable if the practitioner has a pre-existing practitioner-patient relationship or is providing the telemedicine service pursuant to a call-coverage arrangement. It must, however, be noted that SB 1107 prohibits the use of telemedicine to prescribe an abortifacient or any other drug or device that terminates a pregnancy, such as “Plan B.”

Mental health services are excluded from the telehealth provisions. With this exception, it will be interesting to see whether the applicable regulatory boards will afford tele-mental health services the same flexibility provided for other telehealth services under SB 1107.

The legislation also precludes commercial third-party payers from rejecting telemedicine and telehealth claims solely because the services were provided using telecommunications or information technology. However, the reimbursement protection is inapplicable to services provided by phone (or other audio-only technology) or through visual-only interactions.

The Texas Medicaid program will also reimburse for services provided through telemedicine. Prior approval for the use of telehealth services is generally not required under the Medicaid program.

The standard of care applicable to telehealth and telemedicine services is the same as that which would apply in an in-person setting.

Finally, it must be noted that the Texas Medical Board and other regulatory bodies continue to have a great deal of discretionary authority over regulation of telemedicine and telehealth services. In particular, AB 1107 directs the Texas Medical Board, the Texas Board of Nursing, the Texas Physician Assistant Board and the Texas State Board of Pharmacy to jointly develop rules governing when and how prescriptions can be issued in connection with a telemedicine/telehealth service.

In addition to SB 1107, telehealth services will also be expanded by HB 1697 which established a teleNICU services grant program and SB 922 which assures Medicaid reimbursement for telemedicine/telehealth services provided in educational facilities. In addition, while still awaiting signature by Governor Abbott, SB 1633 enhanced the availability of telepharmacy services by authorizing remote dispensing sites in areas that are medically underserved, areas with a medically underserved population and areas with a health professional shortage.