A few months ago, two states that previously imposed onerous telemedicine requirements – Texas and Oklahoma – enacted laws that loosen restrictions on telemedicine providers and generally fall into line with what a vast majority of states already permit. However, these laws continue a pattern in which each state’s telemedicine laws use different definitions for what constitutes telemedicine and imposes disparate restrictions on telemedicine providers. This lack of uniformity imposes an ongoing challenge for telemedicine providers.

The Texas law, passed by the state legislature on May 12, 2017, permits telemedicine providers to establish a valid patient-provider relationship via telemedicine and without the need a prior in-person visit. This law follows a long and arduous court battle between the Texas Medical Board and Teladoc Inc. A summary of the case can be found here. At the crux of the controversy were Board regulations that prohibited physicians from establishing a valid physician-patient relationship in the absence of an in-person visit.  Continue Reading Holdout States Loosen Restrictions on Telemedicine but Obstacles Remain

In 2016 and now in early 2017, state legislatures and regulatory boards continue to enact laws and rules setting telemedicine practice standards. Such standards generally include clarifying the definition of telemedicine aTelemedicine Visits well as providing standards related to prescribing in an online setting, patient informed consent, treatment of medical records generated during a telemedicine encounter, and confidentiality. A recent survey conducted by the Federation of State Medical Boards (FSMB) found that telemedicine standards are the number one priority for state medical boards going into 2017. Continue Reading States Continue Trend to Reduce Telemedicine Barriers

On June 17, the Texas Medical Board (“Board”) filed a brief with the Fifth Circuit Court of Appeals reiterating that the Board’s rulemaking processes are protected under the state action immunity doctrine, noting that the case could significantly impair state agencies in carrying out their governmental functions. The Board’s brief is the most recent action in the Teldoc case that has dragged on for almost two years and left little certainty for those who provide telemedicine services in the State.

As we previously reported, it all began when the Texas Medical Board issued an emergency proposed rule clarifying that physicians must perform a face-to-face or in-person physical examination of a patient prior to issuing a prescription or risk sanctions for unprofessional conduct. Teladoc, whose business model is based on providing health care services via telephone and without a face-to-face or in-person physical examination, sued the Texas Medical Board, alleging that the proposed rule violated antitrust laws. Late last year, a federal district court denied the Texas Medical Board’s motion to dismiss, finding that the Board is not entitled to state action immunity because its actions are not actively supervised by the state. Continue Reading Texas Medical Board Seeks State Action Immunity Protection in Fifth Circuit Brief

A federal district court denied the Texas Medical Board’s (the Board) motion to dismiss an antitrust suit filed by a telemedicine company (Teladoc), finding that the Board is not entitled to state action immunity because its actions are not actively supervised by the state.  Teladoc, Inc. v. Texas Medical Board, No. 1-15-cv-343 (W.D. Tex Dec. 14, 2015) (order denying motion to dismiss).  As we previously reported, the Board issued an emergency rule in January attempting to amend its telemedicine regulations to mandate a “face-to-face visit or in-person evaluation” prior to a physician issuing a prescription.  The Board then engaged in a formal rulemaking to adopt the amendment in April.  Teladoc won a preliminary injunction in May, temporarily blocking the implementation of the new rule. Continue Reading Antitrust Suit Continues to Stymie New Texas Telemedicine Regulation

On Monday, during the annual meeting of the American Medical Association (AMA) House of Delegates, the delegates voted to table a proposed measure to adopt ethical guidelines for physicians who provide telemedicine services. The proposed guidelines, which were based on recommendations by the AMA’s Council on Ethical and Judicial Affairs (CEJA), focused on issues such as ensuring patient privacy and educating patients on the limitations of telemedicine.

Continue Reading AMA Ethical Guidelines on Telemedicine Tabled for Further Review

Late last week, Texas telemedicine practitioners received a temporary reprieve from a new regulation issued by the Texas Medical Board (the “Board”) when a Texas federal court prohibited implementation of the new rule that would have prevented prescribing via telemedicine.  The regulation’s suspension stems from an antitrust claim brought by a national telehealth provider, Teladoc, Inc. (“Teladoc”), and other plaintiffs against the Board alleging that the Board’s new regulation violates Section 1 of the Sherman Act and the Commerce Clause.

The injunction is the latest blow in a lengthy battle in Texas regarding the standards for appropriate telemedicine practice and is one of the first major cases challenging the actions of a state medical board in the wake of the Supreme Court’s decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission, No. 13-354, slip op. (U.S. Feb. 25, 2015).  In that case, the Supreme Court held that the antitrust laws would apply to – and the state action exemption would not protect – activities of state agencies or boards made up of market participants, absent active state supervision of the Board’s challenged conduct. (Further discussion of the case is available in the Mintz Levin Antitrust Alert, Feb. 26, 2015, No Active State Supervision, No Antitrust Immunity for North Carolina State Dental Board”.)

Although the Board is a state agency “statutorily empowered to regulate the practice of medicine in Texas,” notably, it did not assert a state action immunity defense.  The court found the absence of a state action defense significant and somewhat unusual, stating:

Significantly, in this case, the TMB declined to assert any immunity defenses, including Parker immunity, solely as to Plaintiffs’ application for a preliminary injunction.  The normal deference afforded to a state under antitrust law is, therefore, not an issue in reviewing Plaintiff’s application for a preliminary injunction.  The Court’s opinion is properly read through that narrow, and unusual, lens.

Teladoc Inc. v. Texas Medical Board, No. 1-15-CV-343-RP (W.D. Tex. May 29, 2015) (order granting preliminary injunction).

In the wake of the Supreme Court’s North Carolina Board of Dental Examiners decision, whether the Board asserts a state action immunity defense in future proceedings will undoubtedly be closely followed and analyzed, as will any basis asserted for the defense.

Continue Reading Injunction Blocks Implementation of Texas Telemedicine Regulations

Last week, the Texas Medical Board issued a proposed rule (the “Rule”) clarifying that physicians must perform a face-to-face or in-person physical examination of a patient prior to issuing a prescription or risk sanctions for unprofessional conduct. The Rule states that a physician cannot prescribe any drug “without first establishing a defined physician-patient relationship,” which includes, among other things, documenting and performing a physical examination via a face-to-face visit or in-person evaluation. The face-to-face visit or in-person evaluation can occur through the use of telecommunications equipment that allows the provider to see and hear the patient such as through a two-way, real time video conference consultation, but the patient must be located at an “established medical site” – which does not include the patient’s home. Mental health services are explicitly carved out of the face-to-face or in-person evaluation requirement.

The Rule also provides that the use of online questionnaires, or questions and answers exchanged through email, electronic text or chat, or telephone evaluation of a patient are not adequate to establish a valid physician-patient relationship. Contrary to most states that prohibit prescribing based upon only an online questionnaire, the Medical Board appears to be taking the hard line stance that even online prescribing enhanced with such capabilities as telephone consultations, an online chat function, emails, or text will not be enough to meet the standard of care in Texas when prescribing for new patients. Continue Reading Texas Medical Board Issues Proposed Rule Restricting Online Prescribing