The Texas Medical Board is proposing to modify its disciplinary rules to more specifically define the requisites for a physician-patient relationship required for prescribing. Under the proposed revision to 22 T.A.C. § 190.8, before a physician can prescribe medications, the physician must establish a “defined physician-patient relationship.” A defined physician-patient relationship requires that the physician establish a “diagnosis through the use of acceptable medical practices, which includes documenting and performing: … [a] physical examination that must be performed by either a face-to-face visit or in-person evaluation … and appropriate diagnostic and laboratory testing.”

Historically, the rule stated that a “proper” physician-patient relationship required establishing a diagnosis through the use of acceptable medical practices, “such as” a physical examination. The Texas appellate court recently held in Teladoc, Inc. v. Texas Medical Board that the use of the term “such as” in the rule did not require that a physician conduct a physical examination to form a “proper” physician-patient relationship. Rather, a physical examination was only one of several methods by which a “proper” relationship could be established.

After receiving patient provided information on Teladoc’s website, Teladoc provided Texas residents with access to a network of physicians who rendered medical services by telephone. Based on medical information provided on the website by the patient, the patient’s reported symptoms and other information the physician elicited during a telephonic consultation, the physician, when deemed appropriate, would prescribe medications. Based on this business model, the Texas Medical Board sent Teladoc a letter taking issue with Teladoc’s interpretation of the board’s regulations and advising that Teladoc’s program would jeopardize the participating physicians’ medical licenses. According to the Texas Medical Board, the requirements for a “proper” physician-patient relationship meant that the “acceptable medical practices” entailed in “establishing a diagnosis” (and, in turn, initiating a “proper” physician-patient relationship) must always include a “‘face-to-face’ physical examination.” The appellate court disagreed.

The Texas Medical Board’s telemedicine rules have for several years included an explicit requirement that a physician either (1) see the patient one time in a face-to-face visit before providing telemedicine medical care; (2) see the patient without an initial face-to-face to visit, provided the patient has received an in-person evaluation by another physician who has referred the patient to the physician for additional care; or (3) conduct the telemedicine session only when the telemedicine patient is located at an established medical site. Teladoc, however, contended that its telephonic-based services were not governed by the telemedicine rules because of how the Texas Medical Board defined telemedicine. Specifically, the Texas Medical Board defined telemedicine as the practice of medical care delivery through the use of “advanced telecommunications technology” that allows the distant site provider to see and hear the patient in real time. As a result, Teladoc argued that it was not providing telemedicine services because it was not using advanced telecommunications technology and its doctors could not see the patients.

Through the proposed revision to the disciplinary rule, the Texas Medical Board is attempting to require that medical services provided with basic telecommunications technology also include the same face-to-face visit or in-person evaluation as is required under the telemedicine rules.

Under the telemedicine rules, a face-to-face visit or in-person evaluation can occur either in-person or through the use of telecommunications equipment that allows a provider to see and hear the patient, provided the patient is located at an “established medical site”—which does not include the patient’s home. Mental health services are explicitly excluded from the face-to-face or in-person evaluation requirement.

The disciplinary rule, as is the case in most states, also provides that the use of online questionnaires; 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.

The status of the proposed rule is uncertain as Teladoc has obtained a temporary restraining order enjoining an emergency rule similar to the proposed rule. Consequently, Texas providers should carefully monitor the board’s actions in this area as prescribing based on telephone consultations, online chats, emails or texts may not continue to be permissible under the disciplinary rules when prescribing for new Texas patients. However, in the interim, it appears that physicians may be able to prescribe based on “PhysTexting” with patients, if the appropriate standard of care is otherwise satisfied.