For the past seven years, the permissible use of telemedicine[1] in the Texas healthcare industry has been uncertain, at best. But certainty finally came at around noon on July 17, 2017 when the General Counsel of the Texas Medical Board, Scott Freshour, adjourned the Telemedicine Stakeholder Group meeting on the topic of the new Texas telemedicine law, SB 1107, that was signed into law on May 27, 2017.

In short, SB 1107 created a new legal framework for the permissible use of telemedicine in Texas, but with a wrinkle. There is a stark conflict between the new SB 1107 framework and the current Texas Medical Board’s (the “TMB’s”) telemedicine regulations that have governed the healthcare industry in Texas to date. And, more importantly, the TMB has been embroiled in state and federal lawsuits over the recent years to enforce its telemedicine regulations.

Because of this conflict between the new law and existing regulations, it was clear that some of the TMB’s existing telemedicine regulations would need to be revised. However, it was not clear what the TMB was going to do with its other telemedicine regulations that did not conflict with the new SB 1107 framework. Thus, the decisions made at the July 17 Telemedicine Stakeholder Group meeting to reconcile the old regulations with the new law are key to understanding what telemedicine and the healthcare industry will look like going forward in the state of Texas.

The proposed revisions to the TMB rules that were presented at the July 17 meeting made some predictable revisions to the telemedicine rules and some revisions that were not so predictable.

One of the most significant proposed changes to the rules that the TMB revealed at this meeting was the removal of the “patient site presenter” requirement. Under the current TMB rules, a patient is required to be physically in the presence of an agent of the treating physician during most telemedicine encounters, regardless of whether such was clinically required under the relevant standard of care. This blanket patient site presenter requirement was removed in the proposed new TMB telemedicine regulations the board presented at the July 17 meeting.

Another significant change was the removal of the annual in-person physical examination requirement. The current rules require a physician to have physically examined a patient in a traditional office setting within the past twelve months for any patient the physician seeks to treat via telemedicine, even if such is not clinically necessary to meet the relevant standard of care. The TMB has removed this annual physical examination requirement in the proposed new rules.

The other key change in the TMB’s proposed telemedicine rules was the removal of the live video feed requirement. The current rules required most telemedicine encounters to occur via a live video feed between the patient and the physician, even if that method of interaction was not clinically necessary to meet the relevant standard of care. Under the proposed new rules, the TMB no longer requires the patient and physician to interact via live video feed in each telemedicine encounter.

One unexpected restriction that the TMB kept in the proposed new rules was the prohibition against the use of telemedicine for prescribing controlled substances for the treatment of chronic pain. This restriction is not mentioned in SB 1107; and, thus, it will be interesting to see if this restriction is challenged as unenforceable down the road. This restriction is arguably unenforceable in certain scenarios because, under section 111.007(b) of SB 1107, the new law prohibits the TMB from promulgating any rules that create a standard for telemedicine practice that exceeds what is required under SB 1107 and the relevant clinical standard of care.

The TMB also kept a few other restrictions in the proposed new rules that are not otherwise addressed in SB 1107, including the current telemedicine rules governing notices of privacy practices, notices of complaint procedures and fraud and abuse protocols. Thus, these existing TMB rules will likely continue to be required once SB 1107 is fully implemented.

It is important to note that these proposed new TMB telemedicine rules will likely not be published in the Texas Register for comment or adopted for many months, but it is unlikely that the final rules will differ substantially from what was proposed during the July 17 meeting. This is because none of the stakeholders or interested parties at the meeting presented any substantive objections or concerns with the rules as proposed, and everyone expressed general support for the proposed new rules as written.

In sum, the Texas healthcare industry now has a better understanding of how to structure compliant telemedicine ventures going forward with this new framework from SB 1107 and the proposed new rules presented in the July 17 meeting.

If you would like guidance on how your organization should be positioning itself in light of these Texas developments or telemedicine legal developments in other states, you may contact Tara Kepler at +1 719 381 8447 or any of the other Bryan Cave healthcare attorneys listed below:

Anne Sharamitaro     +1 314 259 2570
Whitney Horrell   +1 314 259 2167
Caitlin Hartsell   +1 415 675 3424

 [1] Telemedicine, telehealth, digital health and connected health have a variety of meanings from an industry perspective and a legal perspective. In this Client Alert, the word “telemedicine” is used throughout to generally refer to an encounter between patient and physician when they are not located in the same physical location but are connected somehow via technology to share information or to facilitate the delivery of healthcare services.

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