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

Summary

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.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.