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Holdout States Loosen Restrictions on Telemedicine but Obstacles Remain

A few months ago, two states that previously imposed onerous telemedicine requirements – Texas and Oklahoma – enacted laws that loosen restrictions on telemedicine providers and generally fall into line with what a vast majority of states already permit. However, these laws continue a pattern in which each state’s telemedicine laws use different definitions for what constitutes telemedicine and imposes disparate restrictions on telemedicine providers. This lack of uniformity imposes an ongoing challenge for telemedicine providers.

The Texas law, passed by the state legislature on May 12, 2017, permits telemedicine providers to establish a valid patient-provider relationship via telemedicine and without the need a prior in-person visit. This law follows a long and arduous court battle between the Texas Medical Board and Teladoc Inc. A summary of the case can be found here. At the crux of the controversy were Board regulations that prohibited physicians from establishing a valid physician-patient relationship in the absence of an in-person visit.  The Texas Medical Board held its ground and continued to argue that the telemedicine regulations were necessary to protect patients. However, in a direct repudiation of the Board’s stance, the Texas legislature took matters into its own hands and enacted a law that allows telemedicine providers to establish a provider-patient relationship in the absence of an in-person examination. Additionally, the Texas law explicitly eliminates the Texas Medical Board’s authority to require an in-person visit, but the law does allow the Board to enact rules to “ensure that patients using telemedicine medical services receive appropriate, quality care.”

The Oklahoma law, passed eight days earlier, also permits telemedicine providers to establish a valid patient-provider relationship in the absence of an in-person examination. Under the Oklahoma Board of Medicine rules, physicians were only allowed to provide certain services via telemedicine, such as issuing prescriptions, if the physician had previously had an in-person visit with the patient.

Although it is encouraging that these two states have loosened their telemedicine standards, both of these laws continue a pattern of a lack of uniformity in how states define telemedicine. For example, the Texas law focuses on the physical distance between the provider and patient and does not impose specific methods of delivery or additional records requirements. By contrast, the Oklahoma law defines telemedicine as “two-way, real-time interactive communication” and imposes specific requirements on access to patient medical records prior to the telemedicine visit. This lack of uniformity imposes an ongoing challenge for providers who want to practice telemedicine across state lines and is an impediment to more widespread adoption of telemedicine.

Because telemedicine is clearly in the province of state law, one standard across all states is likely not feasible in the near future. As such, telemedicine providers must continue to exercise caution when providing telemedicine services across state lines.

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About this Author

Carrie A. Roll, Transactional Attorney, Mintz Levin, Law Firm

Carrie's practice involves a variety of transactional, regulatory, and fraud and abuse matters.

Carrie’s transactional experience focuses on advising health care clients on joint ventures, mergers and acquisitions, service agreements, and corporate stock and asset acquisitions. She has served as corporate and regulatory counsel to pharmacy benefit managers, retail pharmacies, and health care providers in acquisitions, which included due diligence, licensing, change of ownership, and contracting. Carrie has also assisted in the preparation and negotiation of pharmacy benefit manager...