The Telemedicine Stakeholder Group met in late July 2017 and offered suggestions for revisions (“Suggested Revisions”) to the current Texas Medical Board (“TMB”) rules in light of the new SB 1107. As previously covered, SB 1107 greatly expanded the telemedicine services physicians can provide in Texas, including allowing the establishment of a physician-patient relationship in connection with telemedicine services without requiring an in-person visit, which effectively rendered certain TMB telemedicine regulations void. SB 1107 also statutorily prescribed that services involving telemedicine are subject to the same standard of care that would apply to the provision of services in an in-person setting, and prohibited any regulatory authority (including the TMB) from adopting rules that impose a higher standard of care for telemedicine services than what is statutorily prescribed.
While the Suggested Revisions are in no way binding on the TMB and do not represent any official proposed regulations that will be published in the Texas Register (and such publication might not happen for many months), the Suggested Revisions offer valuable insight into how the TMB may incorporate the provisions of SB 1107 into its regulations.
The Suggested Revisions proposed changes to 22 TAC 174 on Telemedicine and 22 TAC 190.8 on violations of the Medical Practice Act. The Stakeholder Group suggested removing the blanket requirement of having a patient site presenter with the patient during most telemedicine encounters. The Stakeholder Group also suggested removing the requirement of having the patient be seen by a physician for an in-person evaluation at least once a year. While these two changes were predictable and are consistent with SB 1107, the Stakeholder Group also surprisingly suggested to prohibit treatment of chronic pain with scheduled drugs through telecommunication. This restriction was not addressed in SB 1107.
Regarding prescriptions, the Suggested Revisions assign the same standard of care to prescriptions given after a telemedicine medical service that would apply following an in-person visit. The Suggested Revisions also require a valid prescription to comply with all other laws, including federal laws such as the Ryan Haight Act. The Ryan Haight Act regulates those who distribute medication through the internet and generally requires at least one in-person assessment of a patient before a practitioner prescribes medication. It is unknown how this federal restriction will affect the new telemedicine regulations and SB 1107 as implemented. Also note SB 1107 required the TMB to work together with the Texas Board of Nursing, the Texas Physician Assistant Board, and the Texas State Board of Pharmacy to jointly adopt rules that establish the standards for a valid prescription following a telemedicine encounter. Thus, the final rules on prescriptions must have input from these other agencies as well.
We will have to wait until the TMB publishes its proposed rules in the Texas Register to see whether it accepts, revises or rejects the Suggested Revisions.