By: Andrea Musker, Esq.

Tech-savvy health care providers and tech-savvy patients in California can be grateful for California’s policies regarding telehealth practices.

Consider the turmoil in Texas: telehealth practitioners who want to treat patients in Texas have lost their most recent battle with the Texas Medical Board. New rules formally adopted by the Texas Medical Board on April 9, 2015, implement the position that the Board has been attempting to enforce against Teladoc, Inc., a Dallas-based telehealth company, since 2011. The new rules require an in-person or “face-to-face” examination to establish a physician-patient relationship, and this defined physician-patient relationship is required before a physician can prescribe medications. “Face-to-face” examinations can only be performed at certain “established medical sites” that meet the strict requirements of the Board’s regulations. These requirements constrain telemedicine practices that are common in many other parts of the country, making Texas one of the strictest states for telehealth practices. The Texas restraints may affect even common telephone interactions between physicians and established patients that no one would otherwise consider “telemedicine.”

For the past four years, Teladoc has been leading the charge against what telehealth providers argue are overreaching enforcement attempts from the Board. In 2011, the Texas Medical Board sent a letter to Teladoc threatening to discipline its doctors for prescribing drugs to patients without physically being present in the room with them. Teladoc promptly sued the Board. It argued that the letter from the Board constituted a change in the Board’s rules, and that the Board circumvented the state’s statutory rule-making process, where rules are published, comments are accepted, and then the Board makes its final decision during a scheduled meeting.

The case was not resolved until December 2014. The state district court initially ruled in favor of the Board, but the Texas Court of Appeals ruled that the cease and desist letter from the Board was an invalid amendment to the Board’s rules.

The Texas Medical Board tried its hand at enforcement again in January 2015. Rather than publishing proposed amendments to its rules, it issued an emergency rule. The Board said that a physician’s prescribing medication before a “defined physician-patient relationship” is established was a matter of patient safety, and the emergency rule required doctors to be physically present with their patient.

Teladoc sued again and was granted a temporary injunction. The state was unable to prove that telemedicine was creating the kind of “imminent peril” to patient health and safety that is required for the emergency rule to ban telemedicine. The rules adopted by the Board on April 9, 2015, now formally codify the Board’s position that telemedicine, as it was being used by Teladoc physicians and others, is not appropriate for the treatment of Texas patients.

Contrast California’s telehealth policies with the limitations in Texas: the Medical Board of California has published a clear statement on telehealth. It considers telehealth, or telemedicine, as “a tool in medical practice, not a separate form of medicine.”[1] California’s Telehealth Advancement Act of 2011 only requires an “appropriate” prior examination by the treating physician before making a diagnosis or prescribing medication, leaving the determination of what is “appropriate” to the physician’s professional discretion. A California licensed physician can use telehealth tools to treat California residents from anywhere in world, as long as the physician deems the remote treatment appropriate for the patient’s condition.

California continues to move in the opposite direction as Texas in telehealth. AB 809, effective this year, revised the informed consent requirements. Under AB 809, consent to treatment via telehealth may be made verbally or in writing, and the provider who obtains the consent is no longer required to be at the site where the patient is physically located. This bill allows the entire interaction between the physician and patient to occur remotely.

Physicians who are considering expansion of their practices through technology should pay close attention to the laws of the states where their patients reside. For example, physicians practicing via telemedicine may want to make it clear on their websites that they cannot treat patients in Texas. The location of the patient can mean the difference between a practice free to use technology to treat patients and a practice whose tech-dreams are shackled by state legislatures or medical boards trying to protect their citizens from what they deem to be inappropriate medical practices.