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With New Texas Law, Telemedicine Passes an Important Milestone

Texas lawmakers have enacted new telemedicine legislation, making it the final state to put digital healthcare on a par with the in-person visit and opening the Lone Star State to new telehealth programs.

Source: ThinkStock

By Eric Wicklund

- Texas Gov. Greg Abbott’s endorsement of new telemedicine regulations means the nation has finally agreed that a physician-patient relationship can be established through a virtual visit.

With Abbott’s signature on SB 1107/HB 2697, Texas becomes the last state to allow physicians to connect with new patients via telehealth, rather than having to first meet in person. The action puts to rest a long-simmering debate between telemedicine advocates and healthcare providers over whether the telehealth visit can be treated with the same weight as an in-person visit.

The new law also establishes that telemedicine visits have to be held to the same standards of care as in-person visits.

In an recent analysis, the McDermott, Will & Emery law firm says the new legislation “provides a much needed restart for Texas’ regulation of telemedicine,” opening the door for new programs beyond the isolated pockets and services now being provided in the state.

“Many have argued that Texas’ continued requirement of the initial face-to-face encounter has stunted the growth of telemedicine in a state that is well positioned to benefit from telemedicine’s ability to connect patients in underserved or rural areas without immediate access to the right healthcare providers that the patient needs the most,” the firm said.

READ MORE: AMA Approves Ethical Guidelines for Telemedicine

It opens the door to direct-to-consumer telehealth in Texas, which had largely been handcuffed by the in-person requirement, and could put an end to the contentious, two-year legal battle between Teladoc and the Texas Medical Board. The Dallas-based telehealth vendor and some of its competitors, including American Well, MDLive and Doctor on demand, are expected to expend their business into the Lone Star State, potentially improving healthcare access for millions of Texans.

“The statistics tell the story – there is a dire need for improved access to care in this country, along with incredible cost-of-care pressures,” Teladoc CEO Jason Gorevic said in a press release, noting that the state ranks 46th in the nation in primary care physicians per capita and 35 counties have no PCP at all.

“Nowhere has telemedicine been more thoroughly examined and debated by all stakeholders than in Texas,” Gorevic said. “With the proven benefits that telemedicine has already demonstrated, and the rapidly expanding impact of virtual care, this telemedicine legislation should not only serve as the bellwether for all other states, but should be another indication for the federal government of the proven value of remote care models, benefiting patients across the country and the U.S. healthcare system as a whole.”

The new law’s biggest impact may lie in better defining the power of the Texas Medical Board, which – backed by a powerful physicians’ lobby – had sought to ensure that doctors use in-person meetings to establish a doctor-patient relationship and issue prescriptions. Teladoc fought that ruling in court, eventually filing an antitrust lawsuit against the board, and had been supported in its efforts by the U.S. Department of Justice and Federal Trade Commission, among others.

Perhaps recognizing the long fight to get to this point, the new bill makes it clear that government agencies like he Texas Medical Board still have regulatory power, but they “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.” 

READ MORE: Examining the Rocky Road to Telehealth Parity

To that end, the law sets three conditions for the use of telemedicine in establishing the provider-patient relationship. According to the McDermott, Will & Emery analysis, the provider must:

  1. “have 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. “communicate, 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. “provide 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.”

When using an asynchronous or store-and-forward platform, the new law requires that the healthcare provider have access to “clinical information from (1) clinically relevant photographic or video images including diagnostic images; (2) the patient’s relevant medical records, such as the relevant medical history, laboratory and pathology results, and prescriptive histories; or (3) another form of audiovisual telecommunication technology that allows the practitioner to comply with the in-person standard of care.”

And in using either synchronous or asynchronous telemedicine, the provider must provide any appropriate follow-up care. If the patient requests, the provider must also send, within 72 hours, a medical record or report of the telemedicine session, including evaluation and diagnosis of the patient’s conditions, to the patient’s primary care provider. 

The law also sets standards for prescribing medications via telehealth – though it does ban abortions by telemedicine, making Texas the 20th state to prohibit that service. And it amends the state’s telemedicine parity laws to exclude synchronous and asynchronous audio interaction or facsimile, shifting reimbursement to video-based platforms.

Ironically, while the new legislation sets guidelines – including definitions for store-and-forward technology and separate listings for telehealth and telemedicine – for telemedicine growth, the state has long been home to several innovative telehealth and telemedicine programs, serving schools, prisons and a variety of health systems. Teladoc alone has more than 2,500 Texas clients, including Michael’s, Rent-A-Center and BNSF Railway, serving some 3 million Texans.

READ MORE: ATA Sees Telemedicine Momentum in New Report Cards

The legislation also points to the power of compromise.

With a costly and potentially damaging federal trial on the horizon, several factions in the state – including the Texas Medical Board, Teladoc, the Texas eHealth Alliance, physicians’ groups and legislators – got together behind closed doors in late 2015 to break the impasse. The new law resulted from those discussions.

“Teladoc undertook the responsibility to preserve access to telemedicine in Texas more than six years ago, and we are gratified to have been the telehealth company invited to collaborate with the Texas legislature and others in the state to accomplish this laudable goal,” Gorevic said in his press release.

Texas Medical Association President Don Read, MD, said prior to the bill’s passage that 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.”

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