Texas Medical Board Adopts New Telemedicine Policy

Ken Terry

December 01, 2017

The Texas Medical Board (TMB) has issued a new licensing regulation that allows Texas physicians to treat patients via telemedicine without evaluating them in person beforehand. The new rules, which are substantially the same as those the board proposed in September, follow the requirements of a state law passed last spring.

Under the new regulation, the board repealed its requirement that physicians conduct an in-person evaluation before writing a prescription. In addition, the new rules say that telemedicine services need not be provided through an established medical site, as the TMB previously required. The regulation also addresses the requirements for meeting the standard of care, documenting telemedicine services, and communicating with patients. In addition, it requires that physicians who provide telemedicine services to Texas residents be licensed in Texas.

Mental health services can also be provided through telemedicine under the new TMB regulation. However, responding to objections from state nursing associations, the board changed proposed language defining these as medical services to avoid limiting access to mental health care.

TMA Not Fully on Board

The Texas e-Health Alliance, the Texas Academy of Physician Assistants, and the Texas Hospital Association all fully supported the TMB's regulatory changes in their comments on the proposed rules. The Texas Medical Association, which supported the bill that reduced restrictions on telemedicine, wanted to retain some elements of the TMB's previous definition of the physician-patient relationship.

The licensing board disagreed with the medical association on this. Referring to the Senate bill that became law, the TMB said, "SB 1107 clearly states what is required to establish a physician-patient relationship. Further, Senate Bill 1107 applies the same standard of care as that of an in-person setting and limits TMB from requiring any higher standard of care than specified in Senate Bill 1107."

Teladoc, the Texas-based telemedicine firm that challenged the TMB's licensing regulations in court, welcomed the board's final rules. It also dropped its long-running lawsuit against the TMB.

Under the bill that Texas Gov. Greg Abbott signed into law in May, a valid practitioner-patient relationship is considered to exist between a telemedicine provider and a patient he or she has not previously encountered if the telemedicine provider meets certain requirements.

Among other things, the telemedicine provider is required to access and use relevant clinical information to meet the same standard of care as in in-person encounters. Within 72 hours, the provider must send a report on the encounter to the patient's primary care provider.

The telemedicine law directs the Texas Medical Board and the boards of nursing, physician assistants, and pharmacy to jointly develop rules that define valid prescriptions for telemedicine visits. The new TMB regulation states that language has been added to its licensing rules to meet that requirement. In addition, the board inserted language to limit the treatment of chronic pain through telemedicine ― an apparent reference to the opioid epidemic. Physicians must also make a good faith effort to prevent fraud and abuse through the use of telemedicine services.

The TMB ignited a full-scale battle over telemedicine in 2015 when it adopted a policy that prohibited physicians licensed in Texas from prescribing medications during telephone consults with patients they'd never met. Following this policy change, Teladoc filed a federal antitrust suit against the board and obtained an injunction against the enforcement of its telemedicine prescribing rule. In October 2016, the TMB withdrew its appeal of a lower court decision favoring Teladoc's lawsuit. Thereafter, the suit was suspended at the request of both sides while the Texas legislature debated the telemedicine bill.

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