The Texas Medical Board (Board) proposes amendments to §§174.1 - 174.3, 174.5 - 174.9 and new §174.4, concerning Mental Health Services and the repeal of §§174.10 - 174.12, concerning Telemedicine.

The title of Chapter 174 is renamed to "Telemedicine and Mental Health Services" and creates a new Subchapter A, "Telemedicine" and a new Subchapter B, "Mental Health Services".

The amendments to §174.1, concerning Purpose, add language that the purpose of the telemedicine rules is to clarify the requirements of Chapter 111 of the Texas Occupations code related to the provision of telemedicine health services.

The amendments to §174.2, concerning Definitions, delete multiple definitions dealing with telemedicine while adding new definitions of "Prescription," "Store and forward technology," "Telehealth services," "Telemedicine medical services," and "Ultimate user" to comport with the new definitions in Senate Bill 1107 dealing with telemedicine and telehealth services.

The amendments to §174.3, concerning Prevention of Fraud and Abuse, delete the current detailed requirements for protocols to prevent fraud and abuse through the use of telemedicine services, and substitute a requirement that a consistent physician's protocols to prevent fraud and abuse must be consistent standard established by the Health and Human Services Commission pursuant to §531.02161 of the Government Code.

New §174.4, concerning Notice to Patients, adds language requiring physicians communicating with patients by electronic communications other than telephone or facsimile to provide patients with written or electronic notification of the physician's privacy practices prior to providing telemedicine services. The amendment further requires that the notices of privacy practice be consistent with federal standards under 45 CFR Parts 160 and 164. Additionally, the amendments require physicians providing telemedicine medical services to provide patients with notice of how to file a complaint with the Board.

The amendments to §174.5, concerning Issuance of Prescriptions, sets out requirements for valid prescriptions issued as a result of a telemedicine medical service and limits the treatment of chronic pain through telemedicine medical services.

The amendments to §174.6, concerning Minimum Standards for the Provision of Telemedicine Medical Services, delete multiple requirements for providing telemedicine services and substitute simplified minimum requirements for providing a health care service or procedure as a telemedicine medical service that comport with Senate Bill 1107.

The amendments to §174.7, concerning Enforcement Authority rename the section and delete language related to providing telemedicine services under the Board’s former definitions and requirements. The amendments clarify the Board's enforcement authority to investigation and discipline physicians for violations of statutes and rules to telemedicine services.

The amendments to §174.8, concerning State Licensure, rename the section, delete language related to evaluation and treatment of the patient superseded by SB 1107, and add language clarifying that physicians providing telemedicine services must possess a full Texas Medical license when treating residents of Texas.

The amendments to §174.9, concerning Provision of Mental Health Services, delete former rules regarding the provision of mental health care through telemedicine services and substitute simplified requirements for providing mental health services as telemedicine services. These requirements include: a requirement of licensure or certification; establishment of a provider/patient relationship; and a requirement to conform with the standard of care. The amendments make clear that technology may be used to provide mental health services to patients in a different location from the licensed or certified provider. The amendments also make clear that the Board may investigate and discipline providers for violations of rules related to the provision of mental health services.

The Board also proposes the repeal of §174.10, concerning Medical Records for Telemedicine Medical Services, §174.11, concerning On Call Services, and §174.12, concerning State Licensure. The repeals are necessary to ensure that the Board rules comport with SB 1107 and are not duplicative of other Board rules related to the provision of telemedicine and telemedicine services.

Scott Freshour, General Counsel for the Board, has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing this proposal will be to make clear to the public the purpose and scope of the Board's telemedicine rules; to have rules that closely comport to Senate Bill 1107 and follow the legislature's intent in regard to the regulation of telemedicine and telehealth services; to establish one clear standard, consistent with Health and Human Services Commission rules for physicians to create protocols to help avoid fraud and abuse through the use of telemedicine and telehealth services; to insure that patients have an understanding of the privacy policy of physicians utilizing telemedicine services and how to file a complaint with the board; providing physicians clear guidelines on requirements for providing privacy notices; to establish clear guidelines for the validity of prescriptions issued as a result of a telemedicine service; to follow the legislature's intent to limit the treatment of chronic pain through telemedicine medical services and thus protect the public health; to provide clear and simple rules regarding minimum standard for providing telemedicine medical services to the public and physicians providing telemedicine services. An additional public benefit anticipated will be to increase access to healthcare by the public; to clarify to the public and Board licensees that the Board retains enforcement authority to investigate and discipline licensees' violations of statutes and rules related to telemedicine medical services; to protect the public health by insuring that physicians treating Texas residents through telemedicine services possess a full Texas Medical license and to increase public access to mental health care services while insuring public safety by Board oversight.

Mr. Freshour has also determined that for the first five-year period the sections are in effect there will be no fiscal implication to state or local government as a result of enforcing the sections as proposed. There will be no effect to individuals required to comply with the rules as proposed. There will be no effect on small or micro businesses.

Comments on the proposal may be submitted to Rita Chapin, P.O. Box 2018, Austin, Texas 78768-2018, or email comments to: rules.development@tmb.state.tx.us. A public hearing will be held at a later date.

The amendments and new rule are proposed under the authority of the Texas Occupations Code Annotated, §153.001, which provides authority for the Board to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; enforce this subtitle; and establish rules related to licensure.

No other statutes, articles or codes are affected by this proposal.