United States: Texas Continues To Embrace Telemedicine

On September 15, 2017, the Texas Medical Board (Board) released proposed rules regarding telemedicine and mental health services (Proposed Rules) to implement Senate Bill 1107, which was passed on May 11, 2017. Most notably, the Proposed Rules provide that a physician-patient relationship can be established solely by the delivery of care via telemedicine services and eliminates the prior requirement that services for new patients be provided at an established medical site and with a telemedicine presenter. These changes to the Board's approach create the same standard of care for in-person and telemedicine services.

McDermott  previously reported on Senate Bill 1107 and provided relevant background on telemedicine in Texas. The Board is accepting public comments on the Proposed Rules. A public hearing regarding the Proposed Rules will be held at a later date to be determined.

In addition, the Texas Health and Human Services Commission (HHSC) recently adopted final rules regarding the reimbursement of telemedicine in Texas Medicaid (Final Rules) on October 6, 2017. The Final Rules are effective as of December 1, 2017.

Proposed Board of Medicine Regulations

In addition to creating parity between the standard of care that applies to in-person and telemedicine services and eliminating the requirement that the telemedicine medical services be provided at an "established medical site," the Proposed Rules also address the issues listed below.

  • The Proposed Rules replace the current detailed requirements for protocols to prevent fraud and abuse in telemedicine with a simplified requirement that a physician's protocols must be consistent with the standards established by Texas Government Code §531.02161. That statute authorizes the Executive Commissioner of HHSC to determine minimum standards for an operating system used in the provision of telemedicine medical services, telehealth services or home telemonitoring services by a health care facility participating in Medicaid.
  • Under the Proposed Rules, physicians communicating with patients by electronic communications other than telephone or facsimile must provide patients with written or electronic notification of the physician's privacy practices, consistent with federal standards, prior to providing telemedicine services. A good faith effort must be made to obtain the patient's written or electronic acknowledgment of the notice. Physicians must similarly provide notice to patients on how to file a complaint with the Board.
  • The Proposed Rules seek to limit the treatment of chronic pain through telemedicine medical services. The Board determined clear legislative intent exists for the limitation of chronic pain treatment through a telemedicine medical service, despite the fact that chronic pain was not discussed in Senate Bill 1107. The Board thus proposed to prohibit the treatment of chronic pain with scheduled drugs through use of telemedicine medical services, but does not extend this to the treatment of acute pain with scheduled drugs.
  • The Board further proposed requirements for valid prescriptions issued as a result of a telemedicine medical service. Under the Proposed Rules, the validity of a prescription issued as a result of a telemedicine medical service is determined by the same standards that would apply to the issuance of the prescription in an in-person setting.
  • The Proposed Rules clarify that physicians providing telemedicine services must possess a full Texas medical license when treating residents of Texas. The Proposed Rules also clarify the Board's enforcement authority to investigate and discipline physicians for violations of statutes and rules related to telemedicine services.
  • The Board also proposed certain changes to the rules to specifically comport with Senate Bill 1107, including revising or deleting certain definitions and repealing certain rules eliminated by the legislation.

In addition, the Proposed Rules address mental health services as delivered through telemedicine technologies. While the Board recognized that mental health services are expressly exempt from Senate Bill 1107, the Board found it has authority to promulgate rules concerning mental health services since such services are considered the "practice of medicine." The Proposed Rules seek to simplify the requirements for providing tele-mental health services. The proposed requirements include:

  • Requiring Texas licensure or certification to provide mental health services;
  • Establishing a provider/patient relationship, which can be accomplished through the use of telecommunications or information technology; and
  • Conforming the provision of mental health services provided by telemedicine in the same manner as those in a traditional in-person setting.

The Proposed Rules make it clear that telemedicine technology may be used to provide mental health services to patients in a different location from a licensed or certified provider and that the Board has the authority to discipline practitioners providing tele-mental health services.

Final Rules on Texas Medicaid Reimbursement

In the Final Rules for Texas Medicaid reimbursement, HHSC finalized the reimbursement schedule for telemedicine medical services provided to Texas Medicaid beneficiaries. Physicians, physician assistants, advanced practice registered nurses (APRNs), and certified nurse midwives will now be reimbursed for Medicaid telemedicine medical services in the same manner as in-person professional services. Further, licensed professional counselors (including licensed marriage and family therapists), licensed clinical social workers (including Comprehensive Care Program social workers), licensed psychologists and durable medical equipment suppliers are reimbursed for Medicaid telehealth services in the same manner as in-person professional services. A "telehealth service" is a health service, other than a telemedicine medical service, delivered by a licensed or certified health professional acting within the scope of the health professional's license or certification who does not perform a telemedicine medical service and that requires the use of advanced telecommunications technology. That is, a telehealth service is a health service performed by a health professional other than a physician, or under the direction of a physician, using advanced telecommunications technology.

HHSC reimburses eligible providers performing home telemonitoring services in the same manner as their in-person professional services. Also, under certain conditions, telemedicine medical services provided in a school-based setting by a physician will be reimbursed in accordance with the applicable methodologies for in-person professional services, even if the physician is not the patient's primary care physician.


To date, Texas has lagged behind the rest of the country in establishing a regulatory environment for the expansion of telemedicine. The Proposed Rules and Final Rules demonstrate Texas' commitment to remedying this, and telemedicine programs are expanding in Texas in response to this commitment.

Key takeaways from the Proposed Rules and Final Rules include:

Proposed Rule

  • Telemedicine medical services are subject to the same standard of care that would apply to the provision of the same health care service or procedures in an in-person setting;
  • The requirement that the telemedicine medical services be provided at an established medical site has been eliminated;
  • The requirement regarding a physician's protocols to prevent fraud and abuse in telemedicine is simplified by requiring such protocols to be consistent with the standards established by HHSC for Medicaid;
  • Physicians practicing telemedicine must provide patients with written or electronic notification of the physician's privacy practices;
  • The treatment of chronic pain with scheduled drugs through use of telemedicine medical services is prohibited;
  • The validity of a prescription issued as a result of a telemedicine medical service is determined by the same standards that would apply to the issuance of the prescription in an in-person setting; and
  • The Board's acknowledgment of mental health services, which were not addressed in Senate Bill 1107, shows that Texas is open to expanding telemedicine services to a broader population of people in need of services.

Final Rule

  • Texas Medicaid will reimburse telemedicine medical services and telehealth services in the same manner as in-person services.

Please contact the authors of this article or your regular McDermott lawyer for guidance in understanding the Proposed or Final Rules and preparing comments on the Proposed Rules.

Texas Continues To Embrace Telemedicine

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.

In association with
Related Topics
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