On June 9, 2016, the Texas Medical Board proposed for comment new rules regarding physician call coverage. The proposed new rule originated from the Board’s Telemedicine Committee and changes the current telemedicine call coverage rule. The rule would apply to all physician call coverage relationships, not just telemedicine.
During the meetings last week, the Board’s Executive Director stated that the proposed rule was created at the request of the Texas Medical Association and leadership from Children’s Medical Center of Dallas with input from the Texas e-Health Alliance. An earlier draft was withdrawn during the Board’s March 2016 meeting. The current draft was reviewed and discussed during a recent meeting of the Board’s telemedicine stakeholder group.
The proposed rule’s basic structure would require a contractual relationship between the “physician who requests coverage” and the “covering physician.” The call coverage relationship is to be confirmed through a Call Coverage Agreement (CCA). The rule does not include language from the earlier draft which required that both the physician who requests coverage and the covering physician would be “mutually responsible for meeting the standard of care.” The new proposal says a covering physician who enters into a CCA would be responsible for meeting the standard of care for patient care provided during call coverage. In the Purpose and Scope of the rule, there is a general reference to the importance of “maintaining accountability for communication between physicians.”
The proposed rule envisions two models for physician call coverage in Texas: 1) “Non-Reciprocal Call Coverage,” and 2) “Reciprocal Call Coverage.” The “Non-Reciprocal Call Coverage Model” would apply where a) the physicians are not of the same or similar specialty, or b) the physician who requests call coverage never reciprocates by providing call coverage for the covering physician. The “Reciprocal Call Coverage Model” would apply where the physicians are of the same or similar specialty and the physicians take call for each other’s patients. The Non-Reciprocal Model would require a written CCA. The Reciprocal Model would allow for the CCA to be oral or in writing.
Both proposed call coverage models would require the CCA to establish that the covering physician is responsible for meeting the standard of care for patient care provided during the call coverage and for reporting to the physician who requested the coverage. The reporting obligation would not be delegable to the patient or their representative. The report from the covering physician would be done by a) updating the patient’s medical record, b) sending a written report, or c) providing the information through “other methods.” The physician who requested call coverage would be required to ensure that the report is made part of the patient’s medical record.
For the Non-Reciprocal Model, the CCA would have to be in writing and include the following terms: A) establish a covering physician’s responsibility for meeting the standard of care in providing call coverage for the patients of the physician requesting coverage; B) provide a list of all of the physicians that may provide the call coverage under the CCA; C) require that at the time of the service provided, the covering physician have access to the necessary medical records related to the patient who is being treated under the CCA; D) for non-emergency care provided for a diagnosis previously made by the physician who requested call coverage, require the covering physician to furnish a report to the physician requesting the call coverage within seven days from the end of each call coverage period; E) for non-emergency care provided for an injury, illness, or disease not previously diagnosed by the physician who requested call coverage, require the covering physician to furnish a report to the physician who requested the call coverage within 72 hours from the end of each call coverage period; and F) for emergency care provided, require the covering physician to furnish a report to the physician who requested call coverage within an appropriate time period according to the circumstances of the emergency situation.
For the Reciprocal Model, the CCA could be oral or in writing and include terms which “establish” the covering physician’s responsibility for meeting the standard of care for the patient care provided during such call coverage and relaying a report to the physician who requested the coverage regarding such patient care within an appropriate amount of time from the conclusion of each call coverage period.
The Board approved the proposed rule for publication on June 9. The draft was previously circulated to the Board’s telemedicine stakeholder group. The official publication will likely happen in the next couple of weeks and will be available on the Texas Register website. The Board will consider written public comment before, and oral public comment during, their August 25-26 meeting.
Julian Rivera is a partner in the Austin office of Husch Blackwell and is a member of the Healthcare, Life Sciences and Education team. His practice includes representation of clients in regulatory, litigation and business matters including digital health. He is available at 512-479-9753 and Julian.Rivera@HuschBlackwell.com.