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Texas to Take a Leap Forward in Telehealth – A Proposed Bill Drops the Controversial In-Person Evaluation Requirement

Summary

Texas telehealth requirements will significantly change in the near future if Texas Senate Bill 1107 is passed into law, which removes the controversial “face-to-face” or in-person consultation requirement to establish a physician-patient relationship and lawfully provide telehealth and telemedicine services within the state. This bill comes after a six-year-long battle between telemedicine stakeholders and the Texas Medical Board, and will better align Texas’ regulations with those found in other states.

In Depth

After several months of behind-the-scenes negotiations involving legislators, doctors’ groups and telehealth advocates, including the Texas Medical Association, Texas Hospital Association, Texas Academy of Family Physicians, the University of Texas and the Texas e-Healthcare Alliance, Texas Senate Bill 1107 (the Proposed Bill) is scheduled for public hearing today. If enacted, the Proposed Bill will significantly impact telehealth in Texas, the state which currently holds the lowest composite score—“suggesting many barriers for telemedicine advancement”—as determined by the American Telemedicine Association in its 2017 State Telemedicine Gaps Analysis: Physician Standards and Licensure report published last month. Most significantly, the Proposed Bill removes the controversial “face-to-face” or in-person consultation requirement to establish a physician-patient relationship and lawfully provide telehealth and telemedicine services within the state. The Proposed Bill comes after a six-year-long battle between telemedicine stakeholders and the Texas Medical Board.  Since 2011, Teladoc—one of the country’s largest telehealth services providers—has been embroiled in conflict with the Texas Medical Board, chiefly stemming from a letter the board sent to Teladoc concerning Teladoc’s prescribing of medications without first establishing a patient relationship through a face-to-face meeting.  In 2015, Teladoc sued the Texas Medical Board alleging that its implementing regulations of the Texas telemedicine and telehealth statute violate antitrust laws—ultimately stifling both access to care and provider competition by adding an unnecessary hurdle for tele-providers. The case has been stayed until mid-April pending settlement.  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. 

Under the Proposed Bill, synchronous audiovisual technology or a combination of store and forward technology, synchronous audio technology, and certain clinical information may be used to create a physician-patient relationship as long as the provider complies with the conventional standard of care.  The conventional, in-person standard of care is the same standard for telemedicine and telehealth services in many states, a practice also supported by the FTC, the DOJ and many industry groups.  Proponents argue that parity incentivizes tele-providers to enter the market without requiring compliance with additional—sometimes burdensome—regulations.  To reinforce the requirement that telehealth services conform to the in-person standard of care, the Proposed Bill requires that the Texas Medical Board, the Texas Board of Nursing, the Texas Physician Assistant Board, and the Texas State Board of Pharmacy jointly adopt rules and FAQ responses related to the issuance of a prescription under a valid provider-patient relationship where telemedicine or telehealth services are provided.

Texas law currently has a telehealth and telemedicine “coverage parity law.” The Texas Insurance Code provides that (1) 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 (2) 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 Proposed Bill further narrows Texas’ limited coverage parity law by excluding coverage for a telemedicine or a telehealth service provided by only synchronous or asynchronous audio interaction or a facsimile. Notably, the Texas Insurance Code currently lacks a “payment parity” requirement (i.e., a requirement that the amount paid to the provider for rendering the telehealth or telemedicine services be the same as or similar to the amount paid for a service delivered through a face-to-face consultation), and the Proposed Bill does not propose a solution to address its absence.

The Proposed Bill also bans physicians from using telemedicine to prescribe “an abortifacient or any other drug or device that terminates a pregnancy.” If passed, Texas would become the twentieth state to specifically ban telemedicine abortions.  This type of ban has been controversial across the country.  Recently, Utah stripped the limitation from its telemedicine bills, and Planned Parenthood settled a lawsuit with Idaho legislators over a similar restriction and won a similar suit in Iowa in 2015.

Overall, the Proposed Bill is a leap forward for virtual care in Texas.  In 2016, 44 states introduced over 150 telehealth and telemedicine-related pieces of legislation addressing issues ranging from licensing and reimbursement to delivery standards.  Just three months into 2017, telehealth and telemedicine related legislation does not appear to be slowing down.  The Texas Proposed Bill is yet another legislative effort in a continued response to the growing utilization of technology in the delivery of health care.

© 2019 McDermott Will & Emery

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About this Author

Lisa Schmitz Mazur, Health Law Attorney, McDermott Will Law Firm
Partner

Lisa Schmitz Mazur is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office.  Lisa maintains a general health industry practice, focusing on the representation of hospitals and health systems and other health industry providers.

Lisa’s representation of hospitals and health systems includes providing guidance on not-for-profit corporate governance matters, tax-exemption issues, conflict of interest compliance and overall corporate compliance effectiveness.  In addition, Lisa regularly assists hospital and health system clients to...

312-984-3275
Associate

Marshall E. Jackson, Jr. is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C. office.  Marshall focuses his practice on transactional and corporate matters affecting health care organizations,  including business organization, corporate governance, mergers and acquisitions, strategic affiliations and joint ventures.  Marshall also provides advice and counsel on a full range of federal and state fraud and abuse laws to hospital systems, medical practice groups and pharmacies.

Prior to joining McDermott, Marshall was an associate in the health care and life sciences practice group of a national law firm.  Marshall graduated with a health law concentration from the University of Maryland Francis King Carey School of Law, and he was recognized as a member of the Order of the Barristers.  During law school, he served as senior articles editor of the Journal of Healthcare Law and Policy and captain of Maryland's National Trial Team.

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Dale Van Demark, health care, attorney, McDermott Will, law firm
Partner

Dale C. Van Demark is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C., office.  He focuses his practice on a broad array of merger, acquisition, investment, and strategic structuring transactions, with clients in the health industry. He has extensive experience in health system affiliation and restructuring transactions and regularly represents for-profit and tax-exempt clients in a variety of transactions, including strategic transactions with physicians and hospitals. He regularly advises clients regarding the opportunities...

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