United States: Last But Not Least, Texas Takes The Final Steps To Embrace Telemedicine


As one of the last states to retain highly restrictive (and arguably anti-competitive) telemedicine practice standards, health care providers, regulatory boards, technology companies, payors and other stakeholders have been actively monitoring Texas' approach to telemedicine regulation and the related Teladoc case. Senate Bill 1107, a bill that significantly eases the delivery of care via telemedicine in the state of Texas, was passed on May 11, 2017, and the House added an amendment in passing Senate Bill 1107, which was approved in the Senate on May 18—it is anticipated that Governor Abbott will sign the bill into law shortly. 

In Depth

On May 11, 2017, the Texas House of Representatives passed Senate Bill 1107, a bill designed to expand the delivery of care via telemedicine in the state of Texas. The House added an amendment in passing Senate Bill 1107, which was approved in the Senate on May 18. The bill was sent to Governor Greg Abbott's desk for signature on May 19, and it is anticipated that he will sign the bill into law shortly.  As one of the last states to retain highly restrictive (and arguably anti-competitive) telemedicine practice standards, health care providers, regulatory boards, technology companies, payors and other stakeholders located across the US have been actively monitoring Texas' approach to telemedicine regulation and the related Teladoc case, waiting for this day to come.

Relevant Background

As McDermott Will & Emery reported on March 8, 2017, Senate Bill 1107, and the companion House Bill 2697 (together, the Bill), mark a rapid and necessary move forward for the Texas legislature, and by implication, the Texas Medical Board. The Texas Medical Board has been embroiled in litigation with Teladoc, Inc. for two years concerning its regulation of telemedicine. In addition, in September 2016, the Federal Trade Commission (FTC) and US Department of Justice (DOJ) advocated in support of Teladoc and the broad use and adoption of telehealth, which we previously analyzed here.

At the center of the dispute has been the Texas Medical Board's requirement that a face-to-face encounter take place at an "established medical site"—a site with licensed or certified health care professionals, sufficient technology and medical equipment to allow for physical evaluation, and of sufficient size to accommodate patient privacy and presentation of the patient to the provider—between the patient and provider prior to delivering care via telemedicine, unless a very limited exception applies.

By implication, a patient in Zavala County might have to travel an hour and a half to San Antonio to establish a provider-patient relationship with a specialist prior to using telemedicine to get treatment from them in the future. For that hypothetical patient, who may be amongst the poorest in the nation with some of the worst access to health care, this face-to-face requirement could prevent them from receiving the right type of health care services at the right time using telemedicine, as telemedicine might be the only feasible option due to provider shortages (resulting in long wait times for appointments), costs associated with patient travel (including lost wages from missed work) and other considerations.  Many have argued that Texas' continued requirement of the initial face-to-face encounter has stunted the growth of telemedicine in a state that is well positioned to benefit from telemedicine's ability to connect patients in underserved or rural areas without immediate access to the right health care providers that the patient needs the most.

Key Aspects of the Bill

Defining Telemedicine and Telehealth

The Bill redefines or adds definitions to expand on several concepts. First, the Bill adds a definition of store and forward technology that is consistent with what many states have adopted: "technology that stores and transmits or grants access to a person's clinical information for a review by a health professional at a different physical location than the person." The Bill also distinguishes between telehealth services and telemedicine medical services. A telehealth service is defined as "a health service, other than a telemedicine medical service, delivered by a health professional licensed, certified, or otherwise entitled to practice in Texas and acting within the scope of the professional's license, certificate, or entitlement to a patient at a different physical location than the health professional using telecommunications or information technology."

Comparatively, a telemedicine medical service is defined as "a health care service delivered by a physician licensed in Texas, or a health professional acting under the delegation and supervision of a physician licensed in Texas, and acting within the scope of the physician's or health professional's license to a patient at a different physical location than the physician or health professional using a valid telecommunications or information technology."

Redefining Practitioner-Patient Relationship and Standard of Care

Importantly, the Bill removes the requirement that a face-to-face encounter take place prior to the use of telemedicine.

Perhaps recognizing the contentious history of telemedicine's entry into Texas, the Bill provides that "an agency with regulatory authority over a health professional may not adopt rules pertaining to telemedicine medical services or telehealth services that would impose a higher standard of care than the in-person standard of care."  A valid practitioner-patient relationship may be formed using telemedicine as long as the practitioner complies with the in-person standard of care and the practitioner either (1) has a preexisting practitioner-patient relationship with the patient established in accordance with the rules that are authorized to be adopted under a section designed to coordinate the adoption of rules to determine a valid prescription; (2) communicates, regardless of the method of the communication, with the patient pursuant to a call coverage agreement established in accordance with Texas Medical Board rules with a physician requesting coverage of medical care for the patient; or (3) provides the telemedicine medical services through the use of synchronous audiovisual interaction or asynchronous store and forward technology, including store and forward technology in conjunction with synchronous audio interaction.

The use of asynchronous store and forward technology must allow the practitioner to use clinical information from (1) clinically relevant photographic or video images including diagnostic images; (2) the patient's relevant medical records, such as the relevant medical history, laboratory and pathology results, and prescriptive histories; or (3) another form of audiovisual telecommunication technology that allows the practitioner to comply with the in-person standard of care. 

If a practitioner uses synchronous audiovisual interaction or asynchronous store and forward technology, the practitioner is required to provide the patient with guidance on appropriate follow-up care. Additionally, if the patient has a primary care physician and the patient consents, the practitioner must provide to the patient's primary care physician a medical record or other report explaining the treatment provided by the practitioner to the patient, as well as the practitioner's evaluation or diagnosis of the patient's conditions, within 72 hours of a telehealth service or telemedicine medical service being provided. 

The Texas Medical Board continues to maintain jurisdiction to adopt rules to (1) ensure patients receive appropriate, quality care through telemedicine; (2) prevent fraud and abuse in telemedicine medical services; (3) ensure adequate supervision of health professionals who are not physicians and provide telemedicine medical services; and (4) establish the maximum number of health professionals who are not physicians that a physician may supervise through a telemedicine medical service.

Prescribing Rules

The new valid prescription requirement instructs the Texas Medical Board, Texas Board of Nursing, Texas Physician Assistant Board and Texas State Board of Pharmacy to jointly adopt rules that establish the determination of a valid prescription. The boards are additionally required to jointly develop and publish on each respective board's website responses to FAQs relating to the determination of a valid prescription issued in the course of the provision of telemedicine medical services.

The Bill additionally includes a restriction on the prescription of any abortion-inducing drugs or devices. Specifically, the Bill states that no practitioner-provider relationship occurs if a practitioner prescribes an abortifacient or any other drug or device that terminates a pregnancy. Practically speaking, this means that any practitioner who prescribes a drug or device that may induce an abortion will likely violate the rules to be adopted by the Texas Medical Board, and will be subject to discipline. Once signed into law, Texas will become the twentieth state to pass such a restriction. Given Utah's recent withdrawal of a similar provision due to potential litigation and general controversy, and Planned Parenthood's lawsuit settlement with Idaho in 2015, it would be unsurprising to see the provision generate further litigation.

Amends Current Coverage Parity Requirement for Telemedicine Services

Texas law currently has a telehealth and telemedicine "coverage parity law." The Texas Insurance Code provides that (1) a health benefit plan may not exclude a telemedicine or a telehealth service from coverage under the plan solely because the service is not provided through a face-to-face consultation and (2) the health benefit plan may require a deductible, a copayment or coinsurance for a telemedicine medical service or a telehealth service, which may not exceed the amount of the deductible, copayment or coinsurance required for a comparable medical service provided through a face-to-face consultation.

The Bill further narrows Texas' limited coverage parity law by excluding coverage for a telemedicine or a telehealth service provided by only synchronous or asynchronous audio interaction or a facsimile. Notably, the Texas Insurance Code currently lacks a "payment parity" requirement (i.e., a requirement that the amount paid to the provider for rendering the telehealth or telemedicine services be the same as or similar to the amount paid for a service delivered through a face-to-face consultation), and the Bill does not present a solution to address its absence.

Key Takeaways

Overall, the Bill provides a much needed restart for Texas' regulation of telemedicine. Key takeaways from the Bill are:

1.Providers treating patients using telemedicine are held to an in-person standard of care;

2.The various medical and allied-professions boards cannot adopt any rule imposing a higher standard of care on practitioners utilizing telemedicine than the in-person standard of care;

3.The Texas Medical Board maintains a great deal of supervision on practices using telemedicine through its rule-making power;

4.Providers cannot prescribe abortion-inducing drugs or devices using telemedicine;

5.Claims for reimbursement for services provided using telemedicine or telehealth cannot be rejected solely on the basis that the service was provided using telemedicine, but notably, audio-only or visual-only interactions do not gain this benefit;

6.Providers can receive reimbursement for services provided through telemedicine from the Medicaid program without prior approval;

7.The Bill does not apply to mental health services; and

8.Rules on what constitutes a valid prescription are forthcoming.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions