Telemedicine will no doubt make an impact on the way health care is delivered in Texas, as well as in the rest of the country. Teladoc, a Dallas-based provider of telehealth services, given its continued conflicts with the Texas Medical Board dating back to 2011, has been in the legal spotlight on this important issue. In a series of related posts, we will recap the most notable points of the still ongoing dispute, which undoubtedly will affect how Texans receive their medical treatment and services in the future.
Teladoc’s business model is a simple one: Teladoc employs physicians specially trained to provide patient treatment over the telephone. To obtain the company’s services, a patient can request a consultation, allowing a Teladoc physician to review the patient’s medical history and medical records online. The patient and the physician then speak over the telephone, where the physician diagnoses the patient and, if necessary, issues a prescription. Under this protocol, a Teladoc physician does not have to physically encounter a patient.
In 2011, the TMB sent a letter to Teladoc accusing the company’s program of not being in compliance with a state administrative rule (22 TAC section 190.8(l)) that prohibits a physician from issuing a prescription for “any dangerous drug or controlled substance without first establishing a proper professional relationship.” At that time, “a professional relationship” required “establishing a diagnosis through the use of acceptable medical practices such as patient history, mental status examination, physical examination and appropriate diagnostic and laboratory testing.” The TMB claimed that this rule required a face-to-face or in-person examination of the patient prior to the physician issuing a prescription.
Teladoc sued the TMB in state district court, claiming the rule to be invalid as well as inapplicable, but the district court granted the TMB’s motion for summary judgment on this issue. Of course, Teladoc appealed. In December 2014, the Austin Court of Appeals sided with Teladoc, rejecting the TMB’s interpretation of the rule. The appeals court found that the TMB had changed the rule’s essential language without following the proper rule-making process.
In response to the appellate decision, the TMB issued an emergency rule in January 2015, which required a face-to-face or in-person examination of the patient prior to the physician issuing a prescription. Teladoc subsequently sought and obtained a temporary injunction in state district court. The TMB then engaged in formal rulemaking, and in April of 2015, voted to revise the rule to state that “prescription of any dangerous drug or controlled substance [could not be issued] without first establishing a defined physician-patient relationship.” The revisions further provided that “[a]n online questionnaire or questions and answers exchanged through email, electronic text, or chat or telephonic evaluation of or consultation with a patient are inadequate to establish a defined physician-patient relationship.” The revised rule, which was set to go into effect on June 3, 2015, would significantly impact Teladoc’s business, essentially precluding it from treating patients and effectively destroying its business model. Up next, Teladoc’s next move.
Click here for the Austin Court of Appeals’ opinion.
Click here for an informative New York Times article.