State legislature passes bill to expand telemedicine practice.

The last six years have been a wild ride for telehealth providers in Texas. When the Texas Medical Board (TMB) issued emergency rules in 2011 that required either a preexisting relationship or the presence of a face-to-face presenter in order to furnish telemedicine services, telehealth companies immediately sued. After several key court victories by telehealth providers, the TMB agreed last year to promote state legislation that would permit the kinds of telehealth practice routinely allowed throughout the rest of the country, including both live interactive encounters and asynchronous communications without the presence of telehealth presenters. 

These negotiations resulted in SB 1107, a bill expected to be signed soon by Texas Governor Greg Abbott. Last week, the Texas Senate concurred with the House’s amendments to the bill, which effectively finalizes the language telehealth providers will need to consider. Important provisions of the bill include the following:

• Texas-licensed physicians may now establish a valid physician-patient relationship without conducting an in-person exam or having another healthcare provider present with the patient. Physicians may instead exclusively use telehealth to establish relationships with and treat patients, including using both real-time audio/video platforms and asynchronous (store-and-forward) platforms (so long as the physician uses clinically relevant photographic or video images or other relevant medical records, including lab and pathology records and medication histories in the course of treatment).

• Physicians rendering telemedicine services must provide patients with guidance on appropriate follow-up care and, if a patient has a primary care physician and consents to it, the telemedicine physician must send a record or report of the telemedicine encounter to the patient’s primary care provider within 72 hours.

• Prescribing based on telemedicine is permitted, but the law requires state agency stakeholders (including the TMB, the Texas Board of Nursing, and the Texas Board of Pharmacy) to jointly develop specific rules on the requirements for valid prescriptions issued through telemedicine encounters. These rules will be important for defining what kinds of medications may be prescribed through telemedicine. The bill specifically prohibits telemedicine from being used to prescribe an abortion drug or device.

• The standard of care is explicitly stated to be the same as that for in-person medical services. Agencies may not impose higher standards of care for telemedicine services.

• For insurers, the bill clarifies that the Texas telemedicine parity law does not apply to services rendered only through audio interaction or by facsimile. In other words, insurers in Texas are prohibited from restricting coverage solely because it is provided through telemedicine, unless the services are only rendered through phone or fax. The bill also requires insurers to prominently post their telehealth coverage policies and payment practices on their websites so that consumers can easily determine whether and how coverage is available.

The passage of this bill is welcome relief for telehealth providers and companies offering telehealth platforms, particularly in the large, rural state of Texas. Though many providers may have already been furnishing telehealth services in Texas due to the moratorium on the enforcement of the TMB’s telehealth regulations, the bill will provide clarity and comfort that telehealth providers are complying with the law. Nevertheless, there is still much work to be done, since the bill permits the TMB to adopt new regulations in a variety of areas, including:

• ensuring that patients using telemedicine receive appropriate, quality care;

• preventing fraud and abuse in the use of telemedicine, including rules relating to the filing of claims and records required to be maintained in connection with telemedicine encounters;

• ensuring adequate supervision of health professionals who are not physicians and who practice telemedicine (i.e., physician assistants (PAs) and nurse practitioners (NPs)); and

• establishing the maximum number of PAs and NPs providing telemedicine that a physician may supervise.

Though it is unclear when the TMB will issue proposed regulations, it is important for telehealth providers to be prepared to submit comments when these regulations are issued. Telehealth providers should consider the effects of the new law on their business models and how any proposed regulations might change that analysis. In light of the prior history here, it is possible that the TMB might propose rules that would significantly hamper or burden the expansion of telehealth services in the state. If that occurs, telehealth companies should be ready to push back and recommend reasonable workarounds.