The Texas Medical Board (Board) adopts amendments to Subchapter A: Telemedicine, §174.5, concerning Issuance of Prescriptions. The amendments to §174.5 are being adopted with non-substantive changes to the proposed text as published in the August 13, 2021, issue of the Texas Register (46 TexReg 4970). The adopted amendments to §174.5 will be republished.

Amendments to §174.5, Issuance of Prescriptions are adopted as follows:

§174.5 relating to Issuance of Prescriptions, the amendments to §174.5(e) allow physicians to utilize telemedicine to continue issuing previous prescription(s) for scheduled medications to established chronic pain patients, if the physician has, within the past 90 days, seen a patient in-person or via a telemedicine visit using two-way audio and video communication. The amendments will consistently and conveniently provide patients access to schedule drugs needed to ensure on-going treatment of chronic pain and avoid potential adverse consequences associated with the abrupt cessation of pain medication.

The Board received two comments. One joint written comment from the Texas Medical Association (TMA) and Texas Pain Society (TPS) an one comment from Emmanuel Elueze, PhD, regarding the proposed amendments to §174.5. No one appeared to testify regarding the amendments to §174.5 at the public hearing on September 17, 2021. A summary of the comments relating to §174.5, and the Board responses, are as follows.

Comment No. 1: TMA and TPS request that the reference in subsection (e)(1)(A) to "chronic pain patient" because identifying the patient in this manner unfairly stigmatizes patients who seek treatment for chronic pain. Instead, it should be clear that the individual is a patient of the physician, and the patient receives treatment for chronic pain.

Board Response: The Board believes that the language as proposed is necessary and appropriate based on the definitions of chronic pain in other rules. Accordingly, the Board declines this suggested change.

Comment No 2: TMA and TPS also state that the current language in subsection (e)(1)(B), "is receiving a prescription that is identical to a prescription issued at the previous visit", is too narrow and does not take into account flexibility in treatment needed to effectively manage chronic pain and could limit telemedicine services from being provided in this situation. TMA and TPS suggest changing the word "identical" to "similar" as it relates to the prescription being issued during the telemedicine visit.

Dr. Elueze suggests including the words "or lower dose" to subsection (e)(1)(B) to read "is identical or lower dose to a prescription issued at the previous visit."

Board Response: The Board maintains that the language of the rule as published is clear and unambiguous. The effect of changing the word from "identical" to "similar" is less clear and leaves too much room for interpretation. This language as proposed satisfies the intent as it relates to prescribing for chronic pain via telemedicine utilizing a prescription in a quantity and dose that is identical, or lesser in quantity or dose, than previously issued. Accordingly, the Board declines the suggested changes to the rule as published.

Comment No. 3: TMA and TPS also suggest changing subsection (e)(1)(B), relating to the prescription issued at "the previous visit" to "a prescription issued at a previous visit," allowing for a prescription issued at any previous visit to be issued at the telemedicine visit, even if such medication was not prescribed at the previous visit.

Board Response: The language in subsection (e)(1)(B) clearly implements the Board's intent to ensure continuity of care of a patient being treated for chronic pain by the same physician or health professional consistent with the previous visit in which the prescription for chronic pain was written. Therefore, the Board declines to further amend the language as proposed.

Comment No 4: TMA and TPS also urge the board to add the word "other" in subsection (e)(1)(C) to read "has been seen by the prescribing physician or other health professional." TMA and TPS argue that such change will provide for those emergency circumstances in which a previous prescribing physician or healthcare professional is no longer available, and the new physician or healthcare professional can then issue a prescription to treat chronic pain via telemedicine, so long as they have been seen by another physician or another physician's delegate in the last 90 days in-person or via telemedicine.

Board Response: The language in subsection (e)(1)(C) clearly implements the Board's intent to ensure continuity of care of a patient being treated for chronic pain by the same physician or health professional in a consistent manner. Therefore, the Board declines to further amend the language as proposed.

Comment No. 5: TMA and TPS also request changing the word "provider" in subsection (e)(1)(A) to "physician or health professional" in order to be consistent with subsection (e)(1)(C).

Board Response: The Board agrees with this suggested change. Accordingly, the amendments are adopted with non-substantive changes to the proposed text to §174.5(e)(1)(A) as published in the August 13, 2021, issue of the Texas Register (46 TexReg 4970).

Comment No. 6: TMA also suggests changing the references in subsection (e)(1)(C) to "Chapter" 111 of the Occupations Code to "Section 111" for correctness.

Board Response: The Board agrees that correcting the reference is appropriate and the Board adopts the proposed amendments with that non-substantive change to the proposed text to §174.5(e)(1)(C) as published in the August 13, 2021, issue of the Texas Register (46 TexReg 4970).

The amendments are adopted under the authority of Texas Occupations Code §153.001, which provides authority for the Board to adopt rules necessary to administer and enforce the Medical Practice Act and to adopt rules necessary to regulate and license physicians.

Other statutes affected by this rule: Chapter 111 of the Texas Occupations Code.