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Texas Ready to Take on New Telemedicine Rules

In what could be the end of a years-long battle, a bill presented this week would enable Texas physicians to use telemedicine more freely, including in treating new patients, if the standard of care is the same as an in-person visit.

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- Texas lawmakers are ready to review a bill that would define telehealth and telemedicine and enable clinicians in the state to use the platform to establish a physician-patient relationship.

Submitted this week by State Sen. Perry Schwertner, R-Georgetown, chairman of the Senate Committee on Health and Human Services and an orthopedic surgeon, S.B. 1107 sets definitions for telehealth, telemedicine and store-and-forward technology and creates guidelines for physicians using technology. The bill specifically eliminates current wording that requires a face-to-face meeting between doctor and patient before the doctor can use telemedicine for certain services, such as issuing a prescription.

The 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 20th state to specifically ban telemedicine abortions.

Schwertner’s bill represents 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 ranks at or near the bottom of ratings issued by the American Telemedicine Association for its telemedicine rules and regulations, primarily due to its insistence on a face-to-face meeting before using telemedicine.

The state’s powerful doctors’ lobby has, in the past, pushed back against efforts to make telehealth an accepted means of establishing the physician-patient relationship, arguing that a doctor should be made to see a patient in person before using the platform as a means of care.

They also argued that telemedicine services can erode the quality of healthcare – a dispute that tangled the American Medical Association’s efforts to draft ethical guidelines for telemedicine for more than a year, before the AMA approved the guidelines last year.

That cause was taken up by the Texas Medical Board, whose efforts to sharply regulate telemedicine drew oppositions from Teladoc, a Dallas-based telehealth provider that does a majority of its business via phone. While the company won several court skirmishes arising from a lawsuit charging the board with interfering with its right to do business in the state, both sides have asked for and received a stay in the litigation until April in hopes that new legislation would solve the dispute.

Under Schwertner’s bill, a physician could establish a relationship with a new patient through a virtual visit involving an audio-video telecommunications platform, or a combination of store-and-forward technology and a phone call if the physician has had prior access to the patient’s medical records.

Earlier this month, Texas Medical Association President Don Read, MD, said the new legislation would meet with approval from his group as long as telemedicine visits are held to the same standards of care as in-person visits.

“We think that it should meet the same standards of care as if I see somebody in my office,” Read told the Austin Business Journal during a Feb. 7 visit to the state capital. “We’re on board, as long as we can have that. The model that led to all this problem, they didn’t want a doctor-patient relationship. They just wanted to say, give us a call, we’ll prescribe and charge you $65, and we’ll keep going.”

Writing in Lexology, Michelle Apodaca and Neil Issar of the law firm of Hayes and Boone LLP pointed out that state Health and Human Services Commission reports show a more than 30 percent increase in consumer use of telemedicine in Texas from 2014-15, as well as a 63 percent boost in provider use of the technology. In addition, state Medicaid spending on telemedicine during that year rose from $3.7 million to $6.1 million, a 63 percent increase.

“Texas is not the only state with a shifting telemedicine landscape. In 2016, 44 states introduced over 150 telemedicine-related pieces of legislation addressing issues ranging from licensing and reimbursement to delivery standards,” the two wrote. “As Texas and other states continue to respond to the growing utilization of technology in the delivery of healthcare, lawmakers will almost certainly continue to adopt and amend state laws and regulations with an eye towards telemedicine.”

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