Last week, the Texas Medical Board issued a proposed rule (the “Rule”) clarifying that physicians must perform a face-to-face or in-person physical examination of a patient prior to issuing a prescription or risk sanctions for unprofessional conduct. The Rule states that a physician cannot prescribe any drug “without first establishing a defined physician-patient relationship,” which includes, among other things, documenting and performing a physical examination via a face-to-face visit or in-person evaluation. The face-to-face visit or in-person evaluation can occur through the use of telecommunications equipment that allows the provider to see and hear the patient such as through a two-way, real time video conference consultation, but the patient must be located at an “established medical site” – which does not include the patient’s home. Mental health services are explicitly carved out of the face-to-face or in-person evaluation requirement.

The Rule also provides that the use of online questionnaires, or questions and answers exchanged through email, electronic text or chat, or telephone evaluation of a patient are not adequate to establish a valid physician-patient relationship. Contrary to most states that prohibit prescribing based upon only an online questionnaire, the Medical Board appears to be taking the hard line stance that even online prescribing enhanced with such capabilities as telephone consultations, an online chat function, emails, or text will not be enough to meet the standard of care in Texas when prescribing for new patients.

The Rule is not necessarily a surprise for Texas telemedicine providers. The Rule comes on the heels of a December 31, 2014, Texas Court of Appeals decision vacating the Medical Board’s disciplinary action targeting a provider who issued prescriptions based on physician consults via telephone. The Medical Board’s action was based on its informal written guidance against remote prescribing via telephone consults for new patients. The Court of Appeals held that the Medical Board’s informal pronouncement constituted a substantive change to the regulations but failed to follow the established rulemaking process.  Additionally, on November 6, 2014, in advance of the Court of Appeals’ ruling, the Medical Board’s Telemedicine Committee directed staff to pursue formal rule changes to the remote prescribing regulation and draft a summary on how other states are addressing this issue.

Although the Rule appears to preclude or severely limit online prescribing for new patients, it remains to be seen whether it will be implemented as written. The telephone-based provider that was the subject of the Medical Board’s vacated disciplinary action has filed for and obtained a temporary restraining order enjoining the Rule. The next Medical Board meeting in which the Rule will likely be discussed is scheduled for February 12-13, 2015. We recommend that providers currently offering, or considering offering, telemedicine services in Texas carefully monitor the Medical Board activity in this area.