On September 15, 2017, the Texas Medical Board (Board) released proposed rules regarding telemedicine and mental health services (Proposed Rules) to implement Senate Bill 1107, which was passed on May 11, 2017. Most notably, the Proposed Rules provide that a physician-patient relationship can be established solely by the delivery of care via telemedicine services and eliminates the prior requirement that services for new patients be provided at an established medical site and with a telemedicine presenter. These changes to the Board’s approach create the same standard of care for in-person and telemedicine services.

We  previously reported on Senate Bill 1107 and provided relevant background on telemedicine in Texas. The Board is accepting public comments on the Proposed Rules. A public hearing regarding the Proposed Rules will be held at a later date to be determined.

In addition, the Texas Health and Human Services Commission (HHSC) recently adopted final rules regarding the reimbursement of telemedicine in Texas Medicaid (Final Rules) on October 6, 2017. The Final Rules are effective as of December 1, 2017.

Proposed Board of Medicine Regulations

In addition to creating parity between the standard of care that applies to in-person and telemedicine services and eliminating the requirement that the telemedicine medical services be provided at an “established medical site,” the Proposed Rules also address the issues listed below.

• The Proposed Rules replace the current detailed requirements for protocols to prevent fraud and abuse in telemedicine with a simplified requirement that a physician’s protocols must be consistent with the standards established by Texas Government Code §531.02161. That statute authorizes the Executive Commissioner of HHSC to determine minimum standards for an operating system used in the provision of telemedicine medical services, telehealth services or home telemonitoring services by a health care facility participating in Medicaid.

• Under the Proposed Rules, physicians communicating with patients by electronic communications other than telephone or facsimile must provide patients with written or electronic notification of the physician’s privacy practices, consistent with federal standards, prior to providing telemedicine services. A good faith effort must be made to obtain the patient’s written or electronic acknowledgment of the notice. Physicians must similarly provide notice to patients on how to file a complaint with the Board.

• The Proposed Rules seek to limit the treatment of chronic pain through telemedicine medical services. The Board determined clear legislative intent exists for the limitation of chronic pain treatment through a telemedicine medical service, despite the fact that chronic pain was not discussed in Senate Bill 1107. The Board thus proposed to prohibit the treatment of chronic pain with scheduled drugs through use of telemedicine medical services, but does not extend this to the treatment of acute pain with scheduled drugs.

• The Board further proposed requirements for valid prescriptions issued as a result of a telemedicine medical service. Under the Proposed Rules, the validity of a prescription issued as a result of a telemedicine medical service is determined by the same standards that would apply to the issuance of the prescription in an in-person setting.

• The Proposed Rules clarify that physicians providing telemedicine services must possess a full Texas medical license when treating residents of Texas. The Proposed Rules also clarify the Board’s enforcement authority to investigate and discipline physicians for violations of statutes and rules related to telemedicine services.

• The Board also proposed certain changes to the rules to specifically comport with Senate Bill 1107, including revising or deleting certain definitions and repealing certain rules eliminated by the legislation.

In addition, the Proposed Rules address mental health services as delivered through telemedicine technologies. While the Board recognized that mental health services are expressly exempt from Senate Bill 1107, the Board found it has authority to promulgate rules concerning mental health services since such services are considered the “practice of medicine.” The Proposed Rules seek to simplify the requirements for providing tele-mental health services. The proposed requirements include:

• Requiring Texas licensure or certification to provide mental health services;

• Establishing a provider/patient relationship, which can be accomplished through the use of telecommunications or information technology; and

• Conforming the provision of mental health services provided by telemedicine in the same manner as those in a traditional in-person setting.

The Proposed Rules make it clear that telemedicine technology may be used to provide mental health services to patients in a different location from a licensed or certified provider and that the Board has the authority to discipline practitioners providing tele-mental health services.

Final Rules on Texas Medicaid Reimbursement

In the Final Rules for Texas Medicaid reimbursement, HHSC finalized the reimbursement schedule for telemedicine medical services provided to Texas Medicaid beneficiaries. Physicians, physician assistants, advanced practice registered nurses (APRNs), and certified nurse midwives will now be reimbursed for Medicaid telemedicine medical services in the same manner as in-person professional services. Further, licensed professional counselors (including licensed marriage and family therapists), licensed clinical social workers (including Comprehensive Care Program social workers), licensed psychologists and durable medical equipment suppliers are reimbursed for Medicaid telehealth services in the same manner as in-person professional services. A “telehealth service” is a health service, other than a telemedicine medical service, delivered by a licensed or certified health professional acting within the scope of the health professional’s license or certification who does not perform a telemedicine medical service and that requires the use of advanced telecommunications technology. That is, a telehealth service is a health service performed by a health professional other than a physician, or under the direction of a physician, using advanced telecommunications technology.

HHSC reimburses eligible providers performing home telemonitoring services in the same manner as their in-person professional services. Also, under certain conditions, telemedicine medical services provided in a school-based setting by a physician will be reimbursed in accordance with the applicable methodologies for in-person professional services, even if the physician is not the patient’s primary care physician.

To date, Texas has lagged behind the rest of the country in establishing a regulatory environment for the expansion of telemedicine. The Proposed Rules and Final Rules demonstrate Texas’ commitment to remedying this, and telemedicine programs are expanding in Texas in response to this commitment.

Key takeaways from the Proposed Rules and Final Rules include:

Proposed Rule

• Telemedicine medical services are subject to the same standard of care that would apply to the provision of the same health care service or procedures in an in-person setting;

• The requirement that the telemedicine medical services be provided at an established medical site has been eliminated;

• The requirement regarding a physician’s protocols to prevent fraud and abuse in telemedicine is simplified by requiring such protocols to be consistent with the standards established by HHSC for Medicaid;

• Physicians practicing telemedicine must provide patients with written or electronic notification of the physician’s privacy practices;

• The treatment of chronic pain with scheduled drugs through use of telemedicine medical services is prohibited;

• The validity of a prescription issued as a result of a telemedicine medical service is determined by the same standards that would apply to the issuance of the prescription in an in-person setting; and

• The Board’s acknowledgment of mental health services, which were not addressed in Senate Bill 1107, shows that Texas is open to expanding telemedicine services to a broader population of people in need of services.

Final Rule

• Texas Medicaid will reimburse telemedicine medical services and telehealth services in the same manner as in-person services.