United States: Texas Telemedicine Saga Finally Over? The Texas Medical Board Substantially Revises Telemedicine Regulations

The Texas Medical Board's (the "Board") adoption of new telehealth licensing regulations may finally put to bed long-running challenges to the state's historically rigid position with respect to healthcare services delivered remotely via telemedicine. As we previously reported, the Board had been embroiled in a legal dispute with Teladoc, a large, nationwide telehealth company, involving antitrust challenges and an injunction against the Board's enforcement of its in-person examination requirement, discussed below. The ongoing battle prompted action by the Texas legislature to enact statutory changes (Senate Bill 1107 passed last May) to eliminate the requirement that Texas physicians must conduct an in-person visit prior to issuing a prescription. These new regulations were issued in response to the statutory change.

The new regulations track the statutory language. Importantly, the Board eliminated the controversial regulatory requirement for a "face-to-face" consultation to initiate a physician-patient relationship. A valid physician-patient relationship can now be established in Texas through the use of various technological means—including synchronous audiovisual interaction and asynchronous store and forward technology—so long as the physician conforms to the standard of care that would apply to the provision of the same healthcare service or procedure delivered in an in-person setting. Senate Bill 1107 mandates that the Texas Medical Board, the Texas Board of Nursing, the Texas Physician Assistant Board, and the Texas State Board of Pharmacy jointly adopt rules that establish a valid prescription can be issued pursuant to a telehealth service and further, requires each of the respective Boards to jointly develop and publish frequently asked questions relating to the determination of valid prescriptions and make them available on their websites. The regulations recently issued by the Board were made to "insure the rules comport with statutory changes by virtue of Senate Bill 1107." See commentary, available here.

Significantly, the Board repealed two prior requirements that restricted the use of telemedicine in the state: (1) its requirement that the provider conduct an in-person evaluation prior to issuing a prescription, and (2) its requirement that telemedicine services be provided only at "established medical sites." The new regulations added language in a new section 22 TAC 174.4 requiring that physicians who communicate with patients via telemedicine to provide patients with a written notification of privacy practices prior to such telemedicine evaluation and make a good faith effort to obtain the patient's written acknowledgement of receipt. In addition, the new regulations include a limitation on the issuance of prescriptions via telemedicine for the treatment of chronic pain. Specifically, the Board sought to balance the fact that chronic pain is a legitimate medical condition that needs to be treated with concerns over patient safety and the public health crisis involving overdose deaths. See, 22 TAC 174.5. Treatment of chronic pain with scheduled drugs through use of telemedicine medical services is prohibited under the regulations, unless otherwise allowed under federal and state law, however, treatment of acute pain via telemedicine is generally permitted.

The Board further relaxed restrictions on the provision of mental health services via telemedicine and by practitioners other than licensed physicians. In particular, the Board recognized that many people in certain geographic areas lack access to mental health services and the use of technology could alleviate this problem. The new regulations require that "any individual providing mental health services must be properly licensed or certified in Texas to perform healthcare services, or be a qualified mental health professional-community services (QMHP-CS) as defined in 25 TAC §412.303(48)." 22 TAC 174.9. The Board further clarified that a provider/patient relationship may be established through the use of telecommunications or information technology and that services provided via telemedicine must be conducted in the same manner as those traditionally employed in the in-person setting, including proper recordkeeping, evaluations, and treatment. See id.

While Texas represented perhaps the greatest legal battle between telemedicine proponents and licensing bodies, several states still maintain laws, regulations, and policy statements that are restrictive of the practice of telemedicine. State limitations have historically been one of the greatest hurdles to the widespread adoption of telehealth; however, many states have recently taken action to substantially revise their position. While this is encouraging, state regulations remain an evolving landscape that requires constant attention. Companies contemplating or engaging in a multistate telehealth platform are encouraged to carefully examine the applicable state rules to ensure that their business model does not run afoul of the requirements of the applicable licensing bodies.

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