New Texas Medical Board (TMB) rules effective June 3, 2015, limit the ability to prescribe drugs based on telephonic consults. The rules also raise questions about the viability of some call-coverage arrangements. Specifically, for a physician prescribing medication, changes to Tex. Admin. Code tit. 22 §190.8 now require, among other things, a “defined physician-patient” relationship that must include a physical examination performed by the provider face-to-face or in accordance with Tex. Admin. Code tit. 22 ch. 170 rules for telemedicine. Significantly, the limitations do not apply to mental health services, except in cases of behavioral emergencies.
These changes are targeted at the operations of Teladoc, Inc. and other entities that provide only telephonic consultations and which fall outside of TMB’s telemedicine rules. However, it seems possible that the new rules may disrupt some call-coverage arrangements despite TMB’s assertions that this is not the case. In particular, TMB states the new rule does not affect “traditional call-coverage,” which TMB describes as involving the covering physician having full access to patient records and normally being in close proximity to the patient. See 40 Tex. Reg. 3155 (May 29, 2015).
So, any call-coverage arrangement that does not involve full access to patient records and potentially a location of the covering physician in proximity to the patient could be limited by the new rule. Importantly, the changes should not affect the physician that is unavailable; rather, it creates the potential for an adverse licensure action by TMB for the call coverage physician. For example, to avoid liability, instead of an on-call covering physician prescribing an antibiotic over the telephone for a suspected bacterial infection for one sibling when another sibling was recently diagnosed with the infection, the on-call physician would need to direct the patient to a provider that may examine the newly ill sibling physically or via telemedicine.