Texas Torches Telemedicine? Board Issues Emergency Rule

Foley & Lardner LLP

The Texas Medical Board issued an Emergency Rule with proposed changes to the practice standards and disciplinary guidelines for remote prescribing via telemedicine consults. The Emergency Rule states 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 under the Texas regulations. The Emergency Rule states that the physician must perform a physical examination via a face-to-face visit or in-person evaluation. The Emergency Rule carves out mental health services from this in-person evaluation requirement. The changes in the Emergency Rule affect Texas Administrative Code, Title 22, Part 9, Section 190.8(1)(L).

The Board’s action is on the heels of the December 31, 2014 Texas Court of Appeals decision wherein Teladoc prevailed in challenging a Board action targeting telephone-based physician consults. The Board’s prior action was based on its written warning against remote prescribing by physicians who use telephone-based consults for new patients. The Court of Appeals vacated the Board’s action on the grounds the Board’s informal written agency pronouncement constituted a substantive change to the regulations but failed to follow the established rulemaking process. The Court of Appeals reversed the district court’s ruling and found the Board’s pronouncement was invalid.

In advance of the Court of Appeals’ ruling, the Board’s Telemedicine Committee met in November 2014 and had already directed staff to pursue rule changes to Chapter 174 (telemedicine). The next Board meeting is scheduled for February 12-13, 2015 during which the Board will likely discuss this Emergency Rule in accordance with the rulemaking process (as of this post, the February Board Agenda is not available on the Board’s website).

The provisions of the Emergency Rule are as follows (additions are underlined and deletions are struck-through):

190.8 Violation Guidelines. When substantiated by credible evidence, the following acts, practices, and conduct are considered to be violations of the Act. The following shall not be considered an exhaustive or exclusive listing.

(1) Practice Inconsistent with Public Health and Welfare. Failure to practice in an acceptable professional manner consistent with public health and welfare within the meaning of the Act includes, but is not limited to:

(A) – (K) no change

(L) prescription of any dangerous drug or controlled substance without first establishing a [proper professional] defined physician-patient relationship [with the patient].

(i) A [proper] defined physician-patient relationship must include, at a minimum[requires]:

(I) establishing that the person requesting the medication is in fact who the person claims to be;

(II) establishing a diagnosis through the use of acceptable medical practices[such as], which includes documenting and performing:

(-a-) patient history[,];

(-b-) mental status examination[,];

(-c-) physical examination that must be performed by either a face-to-face visit or in-person evaluation as defined in Section 174.2(3) and (4) of this title [,]. The requirement for a face-to-face or in-person evaluation does not apply tomental health services, except in cases of behavioralemergencies, as defined by Texas Health and Safety Code,Section 415.253; and

(-d-) appropriate diagnostic and laboratory testing.

(III) An online questionnaire or questions and answers exchangedthrough email, electronic text, or chat or telephonic evaluation of or consultation with a patient are inadequate to establish a definedphysician-patient relationship [by questionnaire is inadequate];

([III] IV) discussing with the patient the diagnosis and the evidence for it, the risks and benefits of various treatment options; and

([IV] V) ensuring the availability of the licensee or coverage of the patient for appropriate follow-up care.

What will this mean for telemedicine providers in Texas? How will it change the landscape of telehealth in the Lone Star State? Hopefully, the Board’s upcoming meeting will help shed some light on these important issues affecting patient access to telemedicine-based services and maintaining patient safety and quality.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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