After a protracted legal battle resolved in the favor of Teladoc, Inc. (Teladoc) on Dec. 31, 2014, (see Teladoc, Inc. v. Texas Medical Board, No. 03-13-00211-CV, Tex. App. 3rd, Austin) and clarifying that Teladoc physicians could prescribe dangerous drugs based on a telephonic evaluation, the Texas Medical Board (TMB) wasted no time in issuing an emergency rule Jan. 16, 2015, that significantly limits the use of telephones in the practice of medicine.
Specifically, for services other than mental health, the TMB emergency rule requires, among other things, a face-to-face visit or in-person evaluation performed via telemedicine. Significantly, under Texas rules telemedicine requires use of telecommunications equipment that allows the provider to see and hear the patient – a definition that excludes telephonic medicine. As such, the emergency rule appears to significantly alter the care delivery model in Texas where, as in many other jurisdictions, minor conditions may be handled via telephone – such as after-hours calls about earaches, sore throats, allergies and similar maladies in which a provider may reasonably determine that it is appropriate to prescribe medication instead of making the patient wait for normal business hours or referring the physician to another provider.
The TMB emergency rule may be intended to avoid this consequence for a patient’s usual treating physician on the basis that such a physician would have performed the requisite face-to-face or telemedicine visit prior to the condition being addressed via telephone, but the requirement of “establishing a diagnosis through . . . physical examination that must be performed by either a face-to-face visit or in-person evaluation [via telemedicine],” arguably does not provide such flexibility as the diagnosis made on a telephone call may not have existed at a previous face-to-face or telemedicine visit.
Notably, just four days after the TMB issued its emergency rule, Teladoc filed another lawsuit against TMB arguing the emergency rulemaking represents a violation of the Texas Administrative Practice Act, which only allows emergency rules if there is “imminent peril to the public health, safety, or welfare.” Establishing such imminent peril may be difficult given the provision of services by Teladoc and other providers using the telephone medicine model for many years prior to the emergency rule, including more than three (3) years during the previous Teladoc lawsuit. TMB’s next board meeting is Feb. 12-13, 2015, and the emergency rule will hopefully be the subject of discussion and clarification.