| (a) Definitions. The following words and terms, when
used in this section, shall have the following meanings, unless the
context indicates otherwise.
(1) Licensed optometrist or therapeutic optometrist.
As defined in Texas Occupations Code §351.251.
(2) Store and forward technology. As defined in Texas
Occupations Code §111.001(2).
(3) Telehealth services. As defined in Texas Occupations
Code §111.001(3).
(b) Practitioner-Patient Relationship for Telehealth
Services. A valid practitioner-patient relationship is present when
the optometrist:
(1) has a preexisting practitioner-patient relationship
with the patient; or,
(2) provides the telehealth services through the use
of one of the following methods, as long as the practitioner complies
with the follow-up requirements in subsection (b)(2)(D) of this section,
and the method allows the practitioner to have access to, and the
practitioner uses, the relevant clinical information that would be
required in accordance with the standard of care described in Texas
Occupations Code §111.007:
(A) synchronous audiovisual interaction between the
practitioner and the patient in another location;
(B) asynchronous store and forward technology, including
asynchronous store and forward technology in conjunction with synchronous
audio interaction between the practitioner and the patient in another
location, as long as the practitioner uses clinical information from
clinically relevant photographic or video images, including diagnostic
images; or the patient's relevant medical records, such as the relevant
medical history, laboratory and pathology results, and prescriptive
histories; or
(C) another form of audiovisual telecommunication technology
that allows the practitioner to comply with the standard of care described
in Texas Occupations Code §111.007.
(D) A practitioner who provides telehealth services
to a patient as described in subsection (b)(2)(B) of this section
shall:
(i) provide the patient with guidance on appropriate
follow-up care; and
(ii) if the patient consents and the patient has a
primary optometrist, provide to the patient's primary optometrist
within 72 hours after the practitioner provides the services to the
patient a medical record or other report containing an explanation
of the treatment provided by the practitioner to the patient and the
practitioner's evaluation, analysis, or diagnosis, as appropriate,
of the patient's condition.
(c) Fraud and Abuse Prevention. All optometrists or
therapeutic optometrists that use telehealth services in their practices
shall adopt protocols to prevent fraud and abuse through the use of
telehealth services.
(d) Notice.
(1) Privacy Practices.
(A) Unless previously provided, optometrists or therapeutic
optometrists that communicate with patients by electronic communications
other than telephone or facsimile must provide patients with written
notification of the optometrists' or therapeutic optometrists' privacy
practices prior to evaluation or treatment, with a good faith effort
to obtain the patient's written acknowledgement, including by e-mail,
of the notice.
(B) The notice of privacy practices shall include language
that is consistent with federal standards under 45 C.F.R. Parts 160
and 164 relating to privacy of individually identifiable health information.
(2) The optometrist or therapeutic optometrist providing
or facilitating the use of telehealth services shall ensure that the
informed consent of the patient, or another appropriate individual
authorized to make health care treatment decisions for the patient,
is obtained before telehealth services are provided.
(3) Complaints to the Board. Optometrists or therapeutic
optometrists that use telehealth services must provide notice of how
patients may file a complaint with the Board on the optometrist's
or therapeutic optometrist's website or with informed consent materials
provided to patients prior to rendering telehealth services.
(e) Minimum Standards. An optometrist or therapeutic
optometrist providing a health care service or procedure as a telehealth
service is subject to the same standard of care that would apply to
the provision of the same health care service or procedures in an
in-person setting. An optometrist or therapeutic optometrist providing
a telehealth service must:
(1) establish a practitioner-patient relationship;
(2) maintain complete and accurate medical records
as set out in §277.7 Patient Records of this title (relating
to Chapter 277. Practice and Procedure); and
(3) meet the minimum standard of care for the initial
examination of a patient for whom an ophthalmic lens prescription
is signed under Texas Occupations Code §351.353.
(f) Issuance of Prescriptions.
(1) A prescription issued as a result of a telehealth
service is subject to the same standards as an in-person setting.
(2) A therapeutic optometrist shall meet the standard
of care and demonstrate professional practice standards and judgment,
consistent with all applicable statutes and rules when issuing, dispensing,
delivering, or administering a prescription medication as a result
of a telehealth service.
(3) An optometrist or therapeutic optometrist shall
meet the standard of care and demonstrate professional practice standards
and judgment, consistent with all applicable statutes and rules, when
prescribing or fitting lenses or prisms as a result of a telehealth
service.
(4) A valid prescription may be issued as a result
of telehealth services as part of a practitioner-patient relationship
as set out in §279.16(b). A valid prescription for any pharmaceutical
agent shall meet all applicable laws regarding the prescribing, dispensing,
delivering or administering of a dangerous drug or controlled substance.
A valid prescription for ophthalmic goods or procedures shall meet
all applicable requirements of Texas Occupations Code, Chapter 351.
(g) Security Requirements. Adequate measures must be
implemented to ensure that patient communications, recordings and
records are protected consistent with Federal and State privacy laws.
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