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.