The Texas Medical Board (“TMB”) recently proposed new telemedicine regulations (the “Proposed Regulations”). Such regulations are necessary to revise current regulations of the TMB in light of Senate Bill 1107 (“SB 1107”), which recently passed the Texas Legislature.
I. Prescriptions for Medications
SB 1107 required that the TMB, the Texas Board of Nursing, the Texas Physician Assistant Board, and the Texas State Board of Pharmacy jointly adopt rules to establish the determination of a valid prescription in connection with telemedicine visits. The Proposed Regulations state that following a telemedicine medical service, the validity of a prescription “is determined by the same standards that would apply to the issuance of the prescription in an in-person setting.” The Proposed Regulations also state that telemedicine prescriptions are subject to all applicable federal and state law.
One such applicable law is the federal Ryan Haight Online Pharmacy Consumer Protection Act of 2008 (the “Ryan Haight Act”), which requires at least one in-person medical evaluation to occur prior to a physician being able to write a valid prescription for a controlled substance. While the Ryan Haight Act contains seven “practice of telemedicine” exceptions, it can be difficult for providers to ensure that their telemedicine practices meet the very specific and technical requirements of these exceptions.
Some argue that the Ryan Haight Act has outlived its usefulness when considering the advancement and expansion of modern telemedicine. Because modern telemedicine technologies allow providers the ability to visually observe and discuss their patient’s physical condition, medical history, and present illnesses, some claim that the current state of telemedicine technology has successfully addressed the concerns underlying the Ryan Haight Act.
In 2016, the DEA announced its intention to implement a special telemedicine provider registration, as provided for in an exception to the Ryan Haight Act. The implementation of such registration would allow telemedicine providers to prescribe controlled substances without requiring an in-person medical examination after the provider registers with the DEA.
While not addressed by SB 1107, the TMB also proposed to prohibit the treatment of chronic pain with scheduled drugs through telemedicine while permitting the treatment of acute pain with scheduled drugs through telemedicine.
II. Notice Requirements
The Proposed Regulations include new notice requirements not addressed in SB 1107. The Proposed Regulations require that when a physician communicates with a patient using electronic communication technology (other than by phone or fax), the physician must provide the patient with notification of the physician’s privacy practices prior to evaluation or treatment via telemedicine services. Further, “a good faith effort must be made to obtain the patient’s written or electronic acknowledgement” of the notice. Physicians providing telemedicine services must also inform patients of how to file a complaint with the TMB.
II. Practitioner-Patient Relationship
SB 1107 provided that a valid practitioner-patient relationship may be established in certain circumstances with telemedicine. The Proposed Regulations offered less detail than SB 1107 on how to establish this relationship.
SB 1107 also required that the practitioner provide the patient with guidance on follow-up care and, with the patient’s consent, provide the patient’s primary care physician with medical records regarding the telemedicine evaluation within 72 hours. SB 1107 also provided that the practitioner-patient relationship is not present between a practitioner providing telemedicine services and a patient receiving those services if the practitioner prescribes a drug that terminates a pregnancy. The Proposed Regulations do not address these two statutory provisions.
Those who would like to submit written comments on the Proposed Regulations should send them via email to Rules.Development@tmb.state.tx.us.
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