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New Telemedicine Legislation Expands Access in Texas

There is terrific news for patients and providers in Texas. On May 27, Texas governor, Greg Abbott, signed into law Senate Bill No. 1107, which essentially removed the requirement for a physician-patient relationship to be established in a medical setting before telemedicine services could be used. This new law paves the way for an enormous expansion of the use of video visits in the state.

History

While telemedicine has gained strong traction in other states across the country, its use in Texas has been limited. The online health care provider, Teladoc filed suit against the Texas Medical Board arguing that its approach to regulating telemedicine was overly strict, thus hurting competition and keeping Texans from accessing needed care. 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.

Analysis by McDermott Will & Emery explained that, “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.”

What the Law Does

The law changes the way telemedicine can be used in Texas in four critical ways:

The Definition of Telemedicine and Telehealth

Store and Forward: The Bill defines store and forward technology as: “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.”

Telehealth Services: The law also creates a distinction 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.”

Telemedicine medical services: This 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.”

New Approaches to Practitioner-Patient Relationship and Standard of Care

Perhaps the most important thing that the Bill did is removing the requirement that a face-to-face encounter take place prior to the use of telemedicine. The bill stipulates 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.”  It establishes that a 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.

Some additional rules apply to asynchronous (store and forward) telemedicine including the ability to access clinically relevant images, the patient’s medical records, and another form of audiovisual telecommunication technology that allows for the in-person standard of care to be met.

Changes to Prescribing Rules

The law instructs the Texas Medical Board, Texas Board of Nursing, Texas Physician Assistant Board and Texas State Board of Pharmacy to adopt rules that establish the determination of a valid prescription. There is, however, a restriction on the prescription of any abortion-inducing drugs or devices.

Change to Parity Requirement for Telemedicine Services

Texas law already includes a telehealth and telemedicine “coverage parity law.” The Texas Insurance Code provides that 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 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 new bill actually narrows the current parity law to exclude coverage for services provided only via audio or facsimile.

What Does This Mean for Texans?

Texas faces some of the biggest healthcare challenges in the country. Many people live far from providers, patients suffer from long wait times, and there is a shortage of physicians to meet basic healthcare needs. Texas ranks 46th among the states regarding primary care physicians per capita and thirty-five counties have no family physicians at all.

Gerald Ray Callas, MD, chair of the Texas Medical Association (TMA) Council on Legislation, told Medscape Medical News that the TMA supported the legislation because it would increase access to care in rural areas while maintaining the standard of care in virtual visits.

“Telemedicine is a great avenue to improve patients’ access and allow them to have access to physicians in rural communities and other communities where physicians are at a shortage, but still giving them the same advantage that people in big cities and suburbs have,” he said.

Of course, even people in the urban areas will enjoy the flexibility, cost-savings, and convenience that telemedicine provides. Medical offices as well will have a new opportunity to create a revenue stream, improve work-life balance for providers, and improve health outcomes with streamlined follow-up and chronic condition management.

This is all very good news for the Lone Star State.