On May 27, 2017 the Texas Governor signed SB 1107 into law, making certain telehealth arrangements possible after the Texas Medical Board imposed limitations on telehealth services in June 2015.  Specifically, SB 1107 adds new §§111.005-7 to the Texas Occupations Code allowing a physician to prescribe drugs as part of a telehealth encounter involving only telephonic or text-based communication between the physician and patient if:  (i) the physician has access to patient medical records and uses either clinically relevant photographic or video images or the patient’s relevant medical records; and (ii) the physician provides the patient with guidance on appropriate follow-up care and, if the patient consents and has a primary care physician, provides to the patient’s primary care physician within 72 hours after the encounter a medical record or other report containing an explanation of the treatment provided by the physician, including the physician’s evaluation, analysis, or diagnosis.

The SB 1107 language appears narrowly drafted to allow the business model used by Teladoc and seems to be a response to restrictions imposed on services provided by telephone that were added to Texas Medical Board rule 190.8 in 2015 as the result of a long dispute between the Texas Medical Board and Teladoc.  Among other things, the 2015 change required physicians performing services via telephone to, in most cases, have a face-to-face visit or video telemedicine visit (“telemedicine” being specifically defined by the Texas Medical Board) before prescribing drugs.  As a result, Teladoc and other similar telehealth services could not prescribe medication for patients, including drugs such as antibiotics for common ailments, because such physicians generally had no contact with patients other than through telephonic visits.  As of May 27, 2017, however, as long as the necessary infrastructure for asynchronous medical record access is in place such arrangements are allowed.  Notably, though, the requirement for asynchronous medical record access for telehealth arrangements, other than those with audiovisual capability, limits the viability of such models to entities that can contract with health plans or other entities to gain access to the necessary records.

Another important aspect of SB 1107 is that it allows physicians providing telephone call coverage services to prescribe drugs.  A likely unintentional impact of the Texas Medical Board 2015 rule change was that a physician providing telephone coverage for a colleague in a different practice when the colleague was unavailable ostensibly would have been prohibited from prescribing drugs because the covering physician would not have the previously-required face-to-face visit.  §111.005 of the Occupations Code allows a physician to prescribe regardless of the method of patient communication if the coverage is pursuant to a call coverage agreement that meets the requirements of the October 2016 Texas Medical Board Rule 177.20 regarding such agreements.

Lastly, it is important to note that the primary thrust of SB 1107 is to establish limits for telehealth services that involve prescriptions.  For telehealth services that do not involve prescriptions, the services should only require the standard of care that would apply if the services were provided in an in-person setting; there are no specific requirements regarding the type of equipment or record access required (although, at this time the Texas Medical Board maintains certain requirements for “telemedicine,” which requires audiovisual communication, but does not include medicine by telephone).