All Eyes on Texas as It Considers Tough New Telemedicine Rule

Ken Terry

February 20, 2015

The Texas Medical Board (TMB) recently proposed changes in its licensing rules that would prohibit physicians in the state from prescribing medications to patients with whom they have interacted only on the telephone or online, but have never seen in person.

After a comment period and a public hearing, the board will decide whether to adopt these changes in April, Mari Robinson, executive director of TMB, told Medscape Medical News.

TMB is not the first state medical board to consider or adopt a policy that restricts telephonic prescribing. The Utah Board of Medicine, for example, disciplined a physician who prescribed an antibiotic on the phone to a patient she had never seen while working for a telemedicine company. Nevertheless, TMB's proposed rule change is "significant," said Jonathan Linkous, president of the American Telemedicine Association, in an interview with Medscape Medical News. "Other states are considering it," he said. "A lot of states are looking at Texas to see what happens there."

Moreover, the American Medical Association (AMA) last year released telemedicine guidelines that mirror the Texas Medical Board's policy, and a number of state legislatures are considering bills that might restrict or expand access to telemedicine. So what happens in Texas may have resonance elsewhere.

"Protect the Health of the Citizens"

From TMB's perspective, the rule that prohibits telephonic prescribing by physicians without a prior face-to-face encounter has been in effect since the board enacted a new policy on telemedicine in 2010, Robinson said. But a state appellate court decision in late December opened that interpretation to question.

Teladoc, a telemedicine provider that enables patients to seek medical advice and get prescriptions from physicians in telephonic consults, had sued TMB after the board sent Teladoc a letter asserting that the doctors it hired were not adhering to TMB's policy, according to an article in TexasMedicine. Dallas-based Teladoc lost its case in a lower court, but the appellate court in Austin said that the language in TMB's policy did not mean what the board said it did.

Following that reversal, Robinson said, "The medical board wanted to ensure that people in Texas were protected from inappropriate medical practice. And they held an emergency meeting to discuss what that meant and to look at their alternatives, and they adopted an emergency rule that they believed was necessary to protect the health of the citizens."

 

Although this had been the board's intent all along, she said, the new language was added to meet the court's legal requirements.

"Turning Their Backs on Texas"

Since then, Teladoc has sought and received a court injunction to prevent the emergency rule changes from going into effect, Jason Gorevic, chief executive officer of Teladoc, told Medscape Medical News. While he would not say what his company would do if the amendments are adopted in April, he said, "If they adopt these rules, the medical board will be turning their backs on the needs of Texas citizens who need improved access to care."

Meanwhile, Gorevic noted, Teladoc has not had any trouble in recruiting physicians to deliver phone consultations to its customers. Currently, the company employs about 90 doctors who are licensed in Texas.

Teladoc does not provide video consultations in Texas, he pointed out, because of the 2010 TMB rules on telemedicine. Under those rules, Robinson explained, patients can select one of two options if they want to do a remote consult with a Texas physician.

Under the first option, they must see that doctor once and get a diagnosis; after that, any kind of telemedicine consult with that doctor is allowed for one year. The second option requires the patient to go to an "established site" such as a physician's office, a retail clinic, or a pharmacy. Any licensed healthcare professional can then operate telemedicine equipment with diagnostic capabilities to establish a relationship with a physician, and the patient can communicate with that doctor remotely on their own for the next year.

Under the TMB rules, a doctor can't diagnose a patient for the first time after texting with the patient or having the patient enter information in a smartphone app, Robinson said. Although diagnostic apps are available, she added, "None of those apps have been certified as valid. So at this point in time, this wouldn't be possible."

"Threatened by Telemedicine"

 

Linkous said he didn't find the TMB decision on telephonic consults surprising, "because telemedicine is starting to take hold and become an important part of the way healthcare is delivered. So we're going to have some of these issues that deal with clinical efficacy and ethics come up, and they just have to be sorted through."

Neither the TMB move nor the AMA guidelines is a major threat to telemedicine, Linkous said. But he suggested that organized medicine groups might be feeling pressure from doctors who face a plethora of new competitors, including telemedicine companies, retail clinics, and even pharmacists who can now prescribe in some states.

"As healthcare delivery is changing so dramatically and rapidly, there are a lot of professions that are somewhat threatened by telemedicine," he said. "You've got to make sure to sort through what is related to making sure we guarantee patient safety and what we are doing that just guarantees the jobs of a group of individuals that an association represents."

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