Texas Draft Bill Could Open Way for Telemedicine

Ken Terry

February 13, 2017

After several years of legal warfare over the right of telemedicine companies to provide services in Texas, the two sides have worked out compromise state legislation that would allow virtual visits to go forward under specific rules. This news follows the recent suspension of a lawsuit that Teladoc, a national telemedicine provider, had filed against the Texas Medical Board (TMB).

Under a draft bill championed by State Senator Charles Schwertner, MD, chair of the Texas Senate's Committee on Health and Human Services, a valid practitioner-patient relationship would be considered to exist between a telemedicine provider and a patient whom he or she had not previously treated in person if the telemedicine practitioner met certain requirements.

The virtual encounter would either have to be a synchronous audio-visual interaction between the practitioner and the patient in another location, or it could involve "store-and-forward" technology plus an audio-only interaction if the practitioner used information from the patient's medical records or photo or video images. In either case, the practitioner must have access to and use relevant clinical information to meet the same standard of care required for in-person encounters.

If the patient consents, the telemedicine provider must also send the patient's primary care physician a record or report of the virtual visit within 72 hours.

The TMB currently requires a healthcare professional to be present when a patient initiates a video consult — which means the patient can't do it from home. But Dr Schwertner, an orthopedic surgeon, told Medscape Medical News that if the proposed bill passes, the TMB would be expected to drop that "telepresenter" requirement.

The proposed legislation would also direct the TMB, the Texas Board of Nursing, the Texas Physician Assistant Board, and the Texas State Board of Pharmacy to jointly adopt rules that define valid prescriptions for telemedicine visits.

More Work Ahead

The measure will likely be tweaked further before being introduced in the legislature. In a statement sent to Medscape Medical News, Gerald Ray Callas, MD, chair of the Texas Medical Association Council on Legislation, said, "While we are pleased that the seed of a legislative agreement is in place, we acknowledge that more work remains before it can grow into a new law to guide this valuable form of patient care for the future."

Similarly, a Teladoc spokesman stated in an email, "We are optimistic about the outlook for positive change during the 85th legislative session [of the Texas legislature]."

Nora Belcher, executive director of the Texas e-Health Alliance, which represents the telemedicine vendors, praised the collaborative effort of groups representing the industry, physicians, and patients that led to the agreement underlying the bill. "This is a significant step toward having a fair and open market for telemedicine in Texas," she said.

LaToya Thomas, director of the State Policy Resource Center for the American Telemedicine Association (ATA), similarly said she viewed the draft bill as "a great step forward."

The bill's requirement that physicians obtain patients' medical records before diagnosing and treating them online is very unusual among the states, she said. But she noted that there appears to be some wiggle room in the language, because patients cannot be compelled to share their records with healthcare providers.

Thomas believes that the bill's language is general enough to embrace a variety of telemedicine modalities. But Dr Schwertner said he does not regard telephonic communication — which is used in the majority of Teladoc's virtual visits ― as sufficient to establish a doctor-patient relationship.

"I'm leery of just telephonic consultations," he said. "I believe it is important that any sort of telemedicine bill has patient protections in place and maintains the standard of care that's in place currently. I don't think there should be a different standard of care for care provided through telemedicine vs an in-person encounter."

Currently, there is very limited interoperability between the online records of telemedicine services and ambulatory-care electronic health records. Asked whether this represents a barrier to telemedicine doctors sending notes to patients' primary care physicians, Dr Schwertner responded that they should make good-faith efforts to provide encounter notes "in whatever form is possible and legal."

Dr Schwertner said that the bill's provision regarding the determination of valid prescriptions by the licensing and pharmacy boards would override the TMB's prohibition against prescribing in virtual visits.

However, he added, he doesn't believe that telemedicine providers should be allowed to prescribe controlled substances. The bill also specifically forbids the prescribing of abortion drugs during virtual visits.

Overall, he said, he supports the bill because "[telemedicine] is an important technology that has the potential to improve access, especially in rural and underserved areas, and potentially could have some cost savings as well."

Passage Likely

In Dr Schwertner's view, the chances of the bill's passage in the current legislative session are high. "This is a good faith start by all parties, and I think people will come to the table with the willingness to compromise and find a way forward."

The long-simmering controversy over telemedicine in Texas reached a boiling point in 2015, when the TMB adopted a policy that prohibited physicians licensed in Texas from prescribing medications during telephone consults with patients whom they had never met. A 2010 TMB policy limited video visits with patients to those conducted in the presence of the patient's regular doctor or a telepresenter in a medical office, retail clinic, or pharmacy.

Following the 2015 policy change, Teladoc filed a federal antitrust suit against the TMB and obtained an injunction against the enforcement of the TMB's telemedicine prescribing rule. In October 2016, according to the publication Modern Healthcare, the TMB withdrew its appeal of a lower court decision favoring Teladoc's lawsuit after the US Department of Justice and the Federal Trade Commission took the company's side. The suit was subsequently suspended until April 19, 2017, at the request of both sides, according to the Teladoc spokesperson.

Last June, the American Medical Association changed its policy on telemedicine, acknowledging that it was ethical to diagnose patients online as long as strict limits are observed. Among other things, doctors must disclose financial interests in telemedicine applications or services, must protect patient data from unauthorized access, and must ensure that a telemedicine visit is appropriate to a patient's medical needs when diagnosing the patient or prescribing medicine.

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