Better Late than Never – Texas Arrives at Virtual Party with Passage of Telemedicine Bill

Jay D. Reyero | 6.5.17

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On May 27, 2017 the Texas legislature signed into law Senate Bill 1107 (“Telemedicine Bill”) regarding the use of telemedicine in Texas. The battle over telemedicine in Texas has been a long one, with tensions running particularly high between Teladoc (a DFW-based nationwide telemedicine provider) and the Texas Medical Board. Historically, Texas law required physicians establish an in-person, or face-to-face, relationship with their patients before utilizing electronic communications to diagnose and treat a patient (“telemedicine”). However with the Telemedicine Bill, this contentious prerequisite allows for doctors to use telemedicine in all steps of the process allowing Texas to join the new era of delivering healthcare.

The Telemedicine Bill not only settles the heated battle between Teladoc and the Texas Medical Board but also provides some much needed clarification and guidance.

The most important change by the Telemedicine Bill is the removal of the face-to-face consult requirement at “established medical sites” outfitted with personnel and equipment. The new language allows for a valid practitioner-patient relationship to be initially formed through the use of telemedicine, as long as the practitioner is complying with the same standard of care applied to in-person relationships. The Telemedicine Bill further specifies the practitioner must either: (1) have a preexisting relationship with a patient; (2) communicate with a patient pursuant to a call coverage agreement established in accordance with Texas Medical Board rules; or (3) provide telemedicine services through a prescribed technological method that allows the practitioner access to, and the practitioner uses, relevant clinical information in accordance with the same standard of care applied to in-person relationships.  With any prescribed technological method, the practitioner must provide adequate guidance on follow-up care and if the patient has a primary care physician and consents, provide the primary care physician with the medical records or a report of the treatment within 72 hours of the service being provided.

In addition, the Telemedicine Bill distinguishes between telehealth services and telemedicine medical services to give more guidance to two terms that are often misunderstood and used interchangeably. A telemedicine medical service is a health care service delivered by a physician licensed in Texas, or any professional delegated and supervised by a physician acting within their scope of practice;  the patient is being treated by the professional from a different physical location using valid telecommunications.  Telemedicine is meant to refer more to the clinical services such as remote medical diagnosis and evaluations or video consultations with specialists. A telehealth service is a health care service, other than a telemedicine medical service, delivered by a health professional licensed, certified, or otherwise entitled to practice in Texas acting within their scope of practice, and the patient is being treated by the professional from a different physical location using valid telecommunications.  Telehealth is meant to be broader and encompass both the clinical and non-clinical services such as access to medical knowledge and management.

What the Telemedicine Bill does not specifically address is the issuance of prescriptions via telemedicine. Rather, the Bill imposes a rule-making obligation upon the Texas Medical Board, Texas Board of Nursing, Texas Physician Assistant Board, and the Texas State Board of Pharmacy.  All boards must jointly adopt rules for determining a valid prescription issued in the course of telemedicine services as well as post on their respective FAQ webpages jointly developed responses with additional guidance.

Finally, in terms of insurance coverage, while the Texas Insurance Code already addressed coverage for telemedicine or telehealth services, the Telemedicine Bill now allows a health benefit plan to exclude coverage of a telemedicine or telehealth service if provided by only synchronous or asynchronous audio interaction which includes audio-only telephone consultation, text-only email message, or facsimile transmission.  In an effort to continue to provide more transparency with regard to health care costs and coverage, the Telemedicine Bill requires the adoption and conspicuous display on a health benefit plan issuer’s website of their policies and payment practices for telemedicine services and telehealth services.

According to Teladoc CEO, Jason Gorevic, Texas has 35 counties with no family physicians located within their borders and ranks 46th in the country in primary care physicians per capita. Access to physicians can be a struggle for many Texans.  Now that Texas has chosen to accept the future of medicine and delivery of health care these problems can hopefully be addressed by opening up to Texans a vast pool provider options.

For further details on telemedicine or the Telemedicine Bill please feel free to contact Jay D. Reyero (jreyero@byrdadatto.com).  Thank you for the significant contribution by SMU law student, Raylee Starnes, for the research and drafting of this article.