(a)The validity of a prescription
issued as a result of a telemedicine medical service is determined
by the same standards that would apply to the issuance of the prescription
in an in-person setting.
(b)This rule does not limit the professional
judgment, discretion or decision-making authority of a licensed practitioner.
A licensed practitioner is expected to 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 telemedicine
medical service.
(c)A valid prescription must be:
(1)issued for a legitimate medical
purpose by a practitioner as part of patient-practitioner relationship
as set out in §111.005, of Texas Occupations Code; and
(2)meet all other applicable laws
before prescribing, dispensing, delivering or administering a dangerous
drug or controlled substance.
(d)Any prescription drug orders issued
as the result of a telemedicine medical service, are subject to all
regulations, limitations, and prohibitions set out in the federal
and Texas Controlled Substances Act, Texas Dangerous Drug Act and
any other applicable federal and state law.
(e)Limitation on Treatment of Chronic
Pain. Chronic pain is a legitimate medical condition that needs to
be treated but must be balanced with concerns over patient safety
and the public health crisis involving overdose deaths. The Legislature
has already put into place laws regarding the treatment of pain and
requirements for registration and inspection of pain management clinics.
Therefore, the Board has determined clear legislative intent exists
for the limitation of chronic pain treatment through a telemedicine
medical service.
(1)For purposes of this rule, chronic
pain has the same definition as used in §170.2(4) of this title
(relating to Definitions).
(2)For purposes of this rule, acute
pain has the same definition as used in §170.2(2) of this title.
(A)Treatment of chronic pain with
scheduled drugs through use of telemedicine medical services is prohibited,
unless otherwise allowed under federal and state law.
(B)Treatment of acute pain with scheduled
drugs through use of telemedicine medical services is allowed, unless
otherwise prohibited under federal and state law.
[(a)Privacy Practices.]
[(1)Physicians that communicate with
patients by electronic communications other than telephone or facsimile
must provide patients with written notification of the physicians'
privacy practices prior to evaluation or treatment. In addition, a
good faith effort must be made to obtain the patient's written acknowledgement,
including by e-mail, of the notice.]
[(2)The notice of privacy practices
shall include language that is consistent with federal standards under
45 CFR Parts 160 and 164 relating to privacy of individually identifiable
health information.]
[(b)Limitations of Telemedicine.
Physicians who use telemedicine medical services must, prior to providing
services, give their patients notice regarding telemedicine medical
services, including the risks and benefits of being treated via telemedicine,
how to receive follow-up care or assistance in the event of an adverse
reaction to the treatment or in the event of an inability to communicate
as a result of a technological or equipment failure. A signed and
dated notice, including an electronic acknowledgement, by the patient
establishes a presumption of notice.]
[(c)Necessity of In-Person Evaluation.
When, for whatever reason, the telemedicine modality in use for a
particular patient encounter is unable to provide all pertinent clinical
information that a health care provider exercising ordinary skill
and care would deem reasonably necessary for the practice of medicine
at an acceptable level of safety and quality in the context of that
particular medical encounter, then the distant site provider must
make this known to the patient prior to the conclusion of the live
telemedicine encounter and advise the patient, prior to the conclusion
of the live telemedicine encounter, regarding the need for the patient
to obtain an additional in-person medical evaluation reasonably able
to meet the patient's needs.]
[(d)Complaints to the Board. Physicians
that use telemedicine medical services must provide notice of how
patients may file a complaint with the Board on the physician's website
or with informed consent materials provided to patients prior to rendering
telemedicine medical services. Written content and method of the notice
must be consistent with §178.3 of this title (relating to Complaint
Procedure Notification).]
The agency certifies that legal counsel has reviewed
the proposal and found it to be within the state agency's
legal authority
to adopt.
Filed with the Office
of the Secretary of State on September 1, 2017
TRD-201703487 Mari Robinson, J.D.
Executive Director
Texas Medical Board
Earliest possible date of adoption: October 15, 2017
For further information, please call: (512) 305-7016
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