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The Texas Legislature expands telemedicine

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Publication June 5, 2017

On May 27, 2017, the Texas Governor signed into law Senate Bill 1107 (“SB 1107”). SB 1107 makes many significant changes to existing telemedicine laws and regulations in Texas. Passage of SB 1107 paves the way for telemedicine businesses to expand in Texas. This legislation not only affects businesses already located in Texas or engaged in a Texas-based telemedicine practice, but also presents new opportunities for telemedicine businesses operating in other states. Passage of SB 1107 will also likely lead to dismissal of the Teladoc lawsuit, as the Texas Medical Board rules in dispute in that case were essentially eliminated by SB 1107.

Key changes to telemedicine law in Texas

SB 1107 makes many changes to telemedicine law in Texas. Key changes include:

  • A valid practitioner-patient relationship can now be established without first having an in-person visit or having another healthcare provider present with the patient. Under SB 1107, a valid practitioner-patient relationship can be established exclusively with telemedicine services, as long as the practitioner provides the same standard of care as the practitioner would provide in an in-person setting.
  • The valid practitioner-patient relationship may be established with telemedicine services provided through synchronous audiovisual interaction (real-time audio/video interaction),  asynchronous (store and forward) platforms, or “another form of audiovisual telecommunication technology” that allows the practitioner to comply with the in-person standard of care. SB 1107 defines the standard of care for telemedicine services as the same standard of care that would apply to the provision of the same service or procedure in an in-person setting. SB 1107 also specifies that no agency may adopt a rule that would impose a higher standard of care than the one in SB 1107.
  • SB 1107 requires practitioners who provide telemedicine services to provide patients with guidance on appropriate follow-up care. If the patient consents and has a primary care physician, SB 1107 also requires that the the practitioner provide the patient’s primary care physician with a medical record or other report within 72 hours detailing the services provided to the patient. The report must contain an explanation of the treatment provided by the practitioner and the practitioner’s evaluation of the patient’s condition.
  • SB 1107 adds two new definitions for telemedicine and telehealth, clarifying what constitutes telemedicine and telehealth, and creating more standardized definitions across the Occupations, Insurance, and Government Codes.
    • “Telemedicine medical service” is defined as “[a] health care service delivered by a physician licensed in this state, or a health professional  acting under the delegation and supervision of a physician licensed in this state, 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 telecommunications or information technology.”
    • “Telehealth” 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 this state and acting within the scope of the health professional’s license, certification, or entitlement to a patient at a different physical location than the health professional using telecommunications or information technology.
  • A health benefit plan cannot exclude from coverage a covered health service or procedure solely because that covered service or procedure was not provided through an in-person consultation. However, health benefit plans are not required to cover telemedicine services provided by only synchronous or asynchronous audio interaction, which includes audio-only phone consultations, text-only emails, or facsimile transmissions. Thus, a health benefit plan could restrict coverage for telemedicine services rendered only by phone, email, or fax. Thus, a health benefit plan could restrict coverage for telemedicine services rendered only by voice-only phone calls, text-only emails, or fax.
  • SB 1107 requires payment parity.  The amount of the deductible, copayment, or coinsurance for telemedicine may not exceed the amount for that service when done in-person.
  • A health benefit plan must prominently display on its website its policies and payment practices for telemedicine services. This does not require a health benefit plan to display negotiated contract payment rates for professionals who contract with the issuer to provide telemedicine services.
  • Regarding Medicaid reimbursement to a physician for an “office visit” using telemedicine services, SB 1107 removes the requirement of having a health professional present with the patient at the time of the visit in order to be reimbursed by Medicaid.

Note that SB 1107 does not provide substantive guidance on what determines a valid prescription after providing telemedicine services. It requires the Texas Medical Board, the Texas Board of Nursing, the Texas Physician Assistant Board, and the Texas State Board of Pharmacy to jointly adopt rules that establish a valid prescription. These agencies must also jointly develop and publish frequently asked questions (FAQs) on each of its websites, conveying how to determine a valid prescription issued during the delivery of telemedicine medical services. When acting under the new SB 1107, telemedicine providers and other businesses will need to take into account how other state laws and federal laws, such as the Ryan Haight Act which governs the remote prescribing of controlled substances, intersect with the new telemedicine laws in Texas.

SB 1107 takes effect immediately, except the amendments to Sections 1455.001(3) and 1455.004 of the Insurance Code, and addition of Section 1455.006  to the Insurance Code, which take effect January 1, 2018.

If you have any questions or would like assistance regarding telemedicine services in Texas, please contact Lisa Atlas Genecov or Elise LeGros.

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