On May 27, Texas Governor Greg Abbott signed S.B. 1107 (the “Bill”), making Texas the last state in the nation to allow for the establishment of a physician-patient relationship through a virtual visit. The recently passed legislation eases the regulations surrounding the delivery of telemedicine services in Texas, and has been lauded as leading the way for increased access to care for millions of patients living in rural or underserved communities in the state.
However, it is significant to note that the Bill does not apply to the provision of mental health services.
Redefining How a Physician-Patient Relationship is Established
The Bill removes the initial in-person encounter requirement from Texas’ existing telemedicine law and permits the establishment of a valid physician-patient relationship through telemedicine if the physician complies with the standard of care, and (1) has a pre-existing practitioner-patient relationship established in accordance with prescribing rules yet to be adopted by state rulemaking authorities; (2) communicates with the patient pursuant to a call coverage agreement, or an agreement between a physician requesting coverage and a physician providing coverage, whereby the covering physician is responsible for meeting an appropriate standard of patient care; or (3) provides the telemedicine medical services through the use of an approved technology, including synchronous audiovisual technology or asynchronous store and forward technology.
The Bill defines “store and forward technology” as “technology that stores and transmits or grants access to a person’s clinical information for review by a health professional at a different physical location than the person.” A health care practitioner utilizing an asynchronous store and forward technology platform through which the patient electronically transmits clinical data and digital images to the practitioner who typically reviews the information at a later point, is required to have access to (1) “clinically relevant photographic or video images, including diagnostic images; or (2) the patient’s relevant medical records, such as the relevant medical history, laboratory and pathology results, and prescriptive histories…”
Follow Up Care Requirements
The Bill also states that a health care practitioner delivering telemedicine services must provide the patient with guidance regarding appropriate follow-up care. Additionally, if the patient consents and the patient has a primary care physician, the provider is required to send the patient’s medical record or any other report of the telemedicine visit to the patient’s primary care physician within 72 hours of the telemedicine visit.
Certain agencies are required to promulgate new prescribing rules that recognize that a valid physician-patient relationship can be established via telemedicine for prescribing purposes. The Bill notably bans providers from using telemedicine to prescribe any abortion-inducing drugs or devices, specifically stating that a “practitioner-patient relationship is not present if a practitioner prescribes an abortifacient or any other drug or device that terminates a pregnancy.” The enactment of the Bill thus makes Texas the twentieth state in the nation to pass such a restriction. It is significant to note that the measure banning telemedicine abortions passed in Iowa has been permanently enjoined by court order.
Coverage and Reimbursement
The Bill allows providers to receive reimbursement through Medicaid for a visit provided through telemedicine without prior approval. Health benefit plans also cannot exclude from coverage any services or procedures delivered by a health care practitioner in the course of providing medical services solely because the service was not provided through an in-person encounter. However, a health benefit plan is not required to provide coverage for services provided by only “synchronous or asynchronous audio interaction,” which includes audio-only telephone consultations, text-only e-mail messages, or facsimile transmissions.
Health benefit plans are also required to adopt and display their telemedicine payment practices and policies in a “conspicuous manner” on their websites.
Texas Medical Board Rulemaking Authority
While the Bill states that agencies with regulatory authority over health professionals, notably the Texas Medical Board, cannot “adopt rules pertaining to telemedicine medical services or telehealth services that would impose a higher standard of care…” than the in-person standard, the Texas Medical Board still retains some discretion over the provision of telemedicine practices. Through its designated rulemaking authority under the Bill, the Texas Medical Board may “adopt rules as necessary to…ensure that appropriate care, including quality of care, is provided to patients” receiving telemedicine services