A long-running dispute between Texas medical officials and one of the nation's largest telehealth providers has resulted in a lawsuit and an emergency order that could seriously curb telehealth in the Lone Star State.
On Jan. 16, the Texas Medical Board issued an Emergency Rule that prevents physicians in the state from prescribing controlled substances via telemedicine. The rule amends the Texas Administrative Code, Title 22, Part 9, Section 190.8(1)(L), to state that online questionnaires or discussions via phone, e-mail, electronic text or chat are not adequate to establish a valid relationship between the patient and physician. It further states that a physician must conduct an examination through an in-person examination or face-to-face visit.
The rule does not apply to mental health services.
Teladoc responded by filing suit on Jan. 20 in Travis County Court, charging the board with violations of the Texas Administrative Procedure Act. According to a story filed by the Courthouse News Service, the Dallas-based telehealth company is arguing that the medical board has "created a bogus emergency" to require doctors to meet face-to-face with patients before prescribing controlled substances.
The roots of the dispute date back to 2011, when the Texas Medical Board sent a letter to Teladoc threatening disciplinary action for allowing its doctors to prescribe controlled substances via telemedicine. Teladoc officials subsequently argued that state law does not require that doctors have a "face-to-face" meeting with patients before issuing a prescription. The company then sued the board, claiming "this new interpretation was so inconsistent with the TMB's historical interpretation and the text of Section 190.8(1)(L) that it constituted a new rule, which was invalid for want of notice and comment."
According to the Courthouse News story, Teladoc was granted a temporary restraining order in July 2011, and in 2013 a judge made that order a summary judgment and suspended the board's enforcement of the rule. On Dec. 31, 2014, the Austin Court of Appeals rejected the Texas Medical Board's appeal, saying its original ruling didn't follow the established process for making a substantial change to the regulations. That prompted the board's emergency order this month, which in turn led to Teladoc's latest lawsuit.
"(F)inally, almost 10 years after Teladoc began doing business in Texas and 16 days after losing at the Court of Appeals, the TMB declares an emergency. There is no imminent peril. There is no emergency. There is only a state agency ignoring its legal limitations in a blatant attempt to get its way," the Teladoc complaint reads.
Teladoc, which claims to cover all Texans insured by Aetna, large companies like AT&T, Home Depot and MetroPCS, more than 300 smaller companies and some 800,000 members of Texas Medicaid, says the court's ruling will hurt business and cost the company millions of dollars.
Writing in the Lexology blog, Nathaniel M. "Nate" Lacktman, an attorney with Foley & Lardner, LLP, wondered if the emergency rule could "change the landscape of telehealth in the Lone Star State." He said he hopes the board will clarify the emergency rule at its next meeting on Feb. 12-13.
