Texas Medical Board Adopts Tougher Stance on Telemedicine

Ken Terry

April 13, 2015

In a closely watched decision, the Texas Medical Board (TMB) on April 10 voted to accept proposed rule changes that would prohibit physicians licensed in Texas from prescribing medications over the telephone to a patient they had never met before. The new policy, which does not apply to mental health services, will go into effect June 3.

The ruling will affect telehealth companies that enable patients to consult telephonically with hired physicians and get prescriptions from them for a fee. One of those services, Teladoc, sued the TMB after the board sent the firm a letter that claimed that its physicians were violating the TMB's existing policy.

Teladoc, based in Dallas, lost its case in a lower court but won on appeal, forcing TMB to revise the language of its rule to pass legal muster. In February, the board voted in favor of the proposed language it ratified this week.

The policy's new language says physicians cannot prescribe a medication without first establishing a "defined physician-patient relationship." That includes establishing a diagnosis through an examination performed during a face-to-face encounter.

"An online questionnaire or questions and answers exchanged through email, electronic text or chat or telephonic evaluation of or consultation with a patient are inadequate to established a defined physician-patient relationship," the policy states.

Possible Legal Action

Teladoc issued a statement saying that the TMB's decision "takes away Texans' access to a safe, affordable, and convenient healthcare option that many have depended upon for more than a decade."

The company expressed hope that Texas legislative leaders would "take action to deliver the benefits of telehealth in Texas." Although Teladoc spokeswoman Patty Murray was unavailable for comment at press time, she told Politico that her company is "considering all actions that would protect telehealth services in Texas" in response to a question about possible legal action.

Teladoc's statement claimed that the new TMB rule "outlaws the longstanding practice of physicians providing traditional on-call services for one another." TMB spokesman Jarrett Schneider told Medscape Medical News that was untrue: The board's policy specifically exempts physicians who provide telemedicine services for each other's patients while on call, he said.

In earlier comments to TMB, the American Telemedicine Association (ATA) had also expressed concern about how the proposed language might affect call coverage. Beyond that, the ATA's letter said, "most of the proposal takes the board into an overly prescriptive, complicated...morass regulating a physician's use of telemedicine tools."

The association's official response to Friday's decision was more muted: "Telemedicine is a 21st century solution to deliver care, and the standards should be consistent for medical services delivered via telemedicine and in-person services," it said in part. "ATA expressed our concern that any policies addressing telemedicine not be overly prescriptive and inadvertently thwart the benefits of new technologies for improving care, expanding access and reducing costs."

It is unclear what effect the TMB rule might have on the policies of other state medical boards. The Utah Medical Board last year disciplined a physician who prescribed over the telephone while working for a telemedicine service. In addition, the American Medical Association has adopted a telemedicine policy parallel to that of the TMB.

An "Established Clinical Relationship"

Blackford Middleton, MD, a professor of medicine and biomedical informatics at Vanderbilt University, told Medscape Medical News he supported the safety concern at the heart of the TMB's decision. Middleton, who is also the chair of the American Medical Informatics Association, said, "I've practiced for 25 years, and the rule of thumb always was you can't provide care for a patient over the phone or any other way unless you have an established clinical relationship. I would stand by that to this day."

Telemedicine with a physician's own patients is fine, he said. "This will be cost saving to the system as a whole because it's well known that many clinical encounters aren't necessary. They can be handled over the phone or a video consultation."

Asked why it is all right for an on-call physician to prescribe to a patient he has never met, but not OK for a physician working for a telemedicine service to do the same, Blackford replied, "It's transitive trust. I have established a trust relationship with a patient, I've encountered and know the patient, and my notes reflect my thinking about the patient. For the other doctor in my group, that trust is transitive to that person as a member of my group."

Middleton stressed that he was not questioning the "clinical credibility" of a physician who works for a service like Teladoc. "It's the trust issues and the follow-up and continuous care," he said. These are similar to the problems that some healthcare systems have seen when patients are treated in retail clinics, rather than in physicians' offices, he added.

The TMB has a separate policy on video consults that has been in place since 2010. It requires either that a physician have an established relationship with a patient or that the remote consult take place in an "established site" such as a physician's office, a retail clinic, or a pharmacy, with a healthcare professional standing by.

Middleton approves of that policy. As a physician, he said, he would prefer to do a video consult with a patient whom another professional has vouched for, instead of just having a patient start up a video chat with him on their smartphone.

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