Legal considerations when treating college students via telemedicine

Each year when Fall rolls around and college students return to school, physicians may be asked whether telemedicine is an option for their young patients’ ongoing medical care while away from home.

For physicians with a longstanding relationship with a patient and his or her family, you may want to remain a stable resource for the student’s health care during what could be an unstable time. If the college student’s location will be in the same state that the physician is licensed, this answer is likely an easy one — “Yes.” (That is, provided any telemedicine services used comply with state telemedicine laws).

However, if the student will be attending college outside the state where you practice, the answer gets more complicated. It likely depends on the laws of the state where the student will be physically located when seeking treatment. Also complicating this issue is that certain exceptions to telemedicine laws have been enacted during the COVID public health emergency (PHE).

This article will discuss general considerations relating to Texas physicians treating college students through telemedicine. It will also include a discussion of practical solutions for parents and students who make this request. This article does not address telemedicine for mental health services, which are generally governed by other state and federal laws.

If you practice outside of Texas, please consult with your state medical board for guidance.  

Telemedicine defined

To comply with state telemedicine laws, you should first understand how the law defines telemedicine in your state. In Texas, telemedicine is defined under the state’s telemedicine statute, Texas Occupations  Code, Chapter 111, as “a health care service delivered by a physician licensed in this state, or a health care professional acting under the delegation and supervision of a physician licensed in this state, and acting within the scope of the physician’s or other health professional’s license to a patient at a different physical location than the physician or health professional using telecommunications or information technology.” (1)  

Generally, there are four telemedicine modalities currently in use:

1. interactive audio-video technology (videoconferencing in real time between provider and patient, wherein the provider offers diagnosis and treatment options to a patient);
2. store-and-forward technology (asynchronous, digital transmission of clinical information from patients to a health care professional at a different physical location). This information, which may also be transmitted between the patient’s different health care providers, may include relevant photographic or video images (including diagnostic images), and/other information (such as medical histories, laboratory and pathology results, and prescriptive histories) from the patient’s medical record;
3. remote patient monitoring technology (collecting medical data from remote patients to be used for diagnosis and treatment); and
4. mobile health technology (use of cell phones, mobile devices, wearable devices, and web applications to monitor and track health conditions). (2)

Where can I practice telemedicine?

Where does the physician have to be licensed in order to practice telemedicine? According to the Federation of State Medical Boards,

“A physician must be licensed, or under the jurisdiction, of the medical board of the state where the patient is located. The practice of medicine occurs where the patient is located at the time telemedicine technologies are used. Physicians who treat or prescribe through online services sites are practicing medicine and must possess appropriate licensure in all jurisdictions where patients receive care.” (Emphasis in bold added). (3)

Thus, the law of the state in which the patient is located at the time and place of clinical care must be consulted to determine whether license in that state is required.

A physician licensed to practice medicine in Texas may practice telemedicine within Texas. Texas allows out-of-state physicians to provide “episodic consultations” Texas without a Texas medical license, but that physician must be registered with the Texas Medical Board (TMB) and pay the required fee for such license. (4, 5, 6, 7)

Texas physicians desiring to practice telemedicine in other states should assume that specific state-to-state licensure is required, unless he or she obtains specific legal advice to the contrary. A physician may opt to get multiple licenses in various states but doing so can be cumbersome and expensive.

To streamline licensing in multiple states, 31 states now participate in the Interstate Medical Licensure Compact, including Texas. Eligible physicians need only to complete one application and receive separate licenses from each state where they intend to practice. Texas joined the Compact when Governor Greg Abbot signed HB 1616 into law on June 7, 2021. (8)

What is legally required for telemedicine?

In Texas, the telemedicine statute provides that “[a] health professional providing a health care service or procedure as a telemedicine medical service or a telehealth service is subject to the standard of care that would apply to the provision of the same health care service or procedure in an in-person setting.” Therefore, if a physician cannot uphold the same level of care as an in-person visit, telemedicine services should not be used. (9, 10)

If proceeding with telemedicine, the physician must obtain the patient’s informed consent and provide a notice of privacy practices under HIPAA, as well as the required TMB complaint notice. These mandates are the same as an in-person visit. A physician must also develop protocols related to fraud and abuse as required under other Texas law. (11)

Initial in-person visits are not mandatory, as Chapter 111 does not have an in-person consultation requirement to establish a physician-patient relationship. But again, Chapter 111 confirms that the physician must meet the same standard of care as an in-person visit for each specific clinical telemedicine encounter. (11)

As with in-person visits, medical record requirements and privacy and security laws and rules (HIPAA) must be satisfied. Also, there are other specific restrictions and requirements for prescriptions via telemedicine. For example, Texas Occupations Code § 562.056 (which predates Chapter 111) outlines the requirements for establishing a sufficient practitioner-patient relationship before issuing prescriptions. (12)

Now that Chapter 111 is effective, a physician must establish the necessary patient relationship in order to prescribe in one of the following three ways:

1. the physician has a preexisting relationship with the patient;
2. the physician communicates with the patient pursuant to a call coverage relationship; or
3.  the physician interacts with the patient through an acceptable telemedicine modality that allows the physician to comply with the standard of care (either synchronous audiovisual interaction between the practitioner and the patient in another location, asynchronous store and forward technology, or another form of audiovisual telecommunication technology). (13)

If the physician chooses to establish the necessary patient relationship through option (3) above, certain additional requirements must be met. These requirements, beyond meeting standard of care and medical records requirements, include providing guidance on appropriate follow-up care; reporting to a patient’s primary care physician with the consent of the patient; and meeting all HIPAA and patient privacy requirements. (13)

While Chapter 111 allows the various telemedicine modalities described above, not all modalities are subject to reimbursement. Some may not qualify for coverage under Medicare or private-pay benefit plans.

Finally, there are two notable exceptions for telemedicine in Texas:

1. state law provides that a prescription for an abortifacient issued through telemedicine is not a valid prescription; (13) and
2. TMB rules state that treating chronic pain with scheduled drugs through telemedicine services is prohibited, unless otherwise specifically permitted by federal or state law. (14)

Temporary changes to telemedicine laws due to COVID-19

A physician must also be aware that several temporary changes to telemedicine laws have been enacted due to COVID-19. One temporary change in Texas allows oral (telephone-only) encounters to establish a physician-patient relationship, which may be used along with various other telemedicine modalities for the diagnosis, treatment, ordering of tests, and prescribing for all conditions.

As mentioned, the same standard of medical care, medical record documentation, and billing standards apply in Texas whether the patient is seen via telephone, telemedicine, or in person. During the COVID-19 PHE, a patient may give written or oral consent to such treatment via the telephone as well as via telemedicine, and consent should be documented in the patient’s medical record.

During the PHE, prescription refills can be given in Texas via allowable technology if there is an existing physician-patient relationship. However, providers must first check the Texas Prescription Monitoring Program before prescribing any opioids, benzodiazepines, carisoprodol, or barbiturates.

Generally, federal requirements have been adjusted during the PHE to allow physicians in any state to prescribe Schedule II through V controlled substances to patients without an in-person medical evaluation if all of the following conditions are met.

• The prescription is issued for a legitimate medical purpose by the physician in the usual course of his or her professional practice.
•  The telemedicine communication is conducted using an audio-visual, real-time, two-way interactive communication system.
• The physician acts in accordance with applicable federal and state laws. (15)

If these requirements are all met, a physician may issue the prescription during the PHE using any method of prescribing currently available and in the manner set forth in the U.S. Drug Enforcement Administration regulations (either electronically for schedules II-V or by calling in to a pharmacy for emergency Schedule II or Schedule III-V). (15)

The Texas Medical Board has put temporary emergency rules into place to allow more flexibility in prescribing for acute and chronic pain via telemedicine. The current rules can be reviewed at https://www.tmb.state.tx.us/page/coronavirus#emergencyrules.

During the COVID-19 PHE, the Texas Department of Insurance (TDI) requires state-regulated health insurers and HMOs to pay in-network health professionals the same for telemedicine services as they would be paid for in-person services. This includes covered mental health services (although this parity requirement may expire soon). (16)

The TDI also requires insurers to cover telemedicine services using any platform permitted by state law. The TDI does not require more documentation for telemedicine services than is required for in-person services.

Physicians practicing outside of Texas should specifically check with their state medical board to determine whether the same sort of parity for in-person medicine is given to telemedicine provided in their state.

Finally, due to COVID-19, the HHS Office for Civil Rights (OCR) has announced that it will not impose penalties in any state for non-compliance with HIPAA rules and regulations in connection with the good faith provision of telehealth during the COVID-19 PHE. (17)

The OCR’s notice also indicates that HIPAA-covered providers in any state can use any “non-public facing” audio and video communication technology available for remote communications with patients, such as FaceTime, Facebook Messenger, Google Hangouts video, or Skype. However, “public-facing” applications such as Facebook Live, Twitch, or TikTok are specifically prohibited. 

Physicians in all states should ensure that all encryption and privacy modes remain available to patients and should notify patients of the inherent risks of using third-party applications, even if “non-public facing.” Physicians in any state should always continue to safeguard the protected health information (PHI) of their patients. 

Again, these PHE changes are temporary and may expire at the end of the COVID-19 PHE, may be temporarily extended, or may be made permanent in the future. (17, 18)

Practical solutions

Generally, telemedicine involves real-time physician-patient visits conducted with the help of cameras and viewing screens. If not already set up for telemedicine with appropriate technologies, a physician must comply with all applicable federal and state laws while also considering various practicalities. This may include the need for equipment, software and hardware integration, internet security and privacy, training, and technical support, as well as the likelihood of service interruptions.

Also, various regulatory issues arise in telemedicine, just as they do in the in-person practice of medicine. If the physician is not set up for telemedicine, the answer to the parents and college student requesting telemedicine may need to be “No.” But, again, if a physician is already practicing telemedicine in the state of the college student’s location, the decision becomes less complicated and the solution more achievable.

Other considerations exist specific to treating college students via telemedicine, including determining when telemedicine is appropriate and when it’s not. Does the student have a chronic condition like diabetes or asthma? Would the telemedicine visits be for general wellness visits only? Can the college student request a telemedicine visit for skin rashes, digestive problems, and/or flu/COVID-19-like symptoms? What about urgent care or emergency care?

Remember that in Texas the physician must meet the same standard of care as required for an in-person visit. This means that the physician must determine if it is appropriate to use telemedicine for every visit. In each case, physicians should consider:  

• the type of treatment or diagnostic procedure;
• the seriousness of the patient’s condition;
• the specific chronic conditions of the patient;
• the specific physical and/or mental abilities of the patient to present to the modality;
• the quality of the visual exam or need for a telepresenter;
• whether there is appropriate access to the patient’s diagnostic and medication history; and
• whether there are deficiencies in obtaining accurate clinical information regarding the specific patient. (19)

Conclusion

Generally, if a physician is comfortable with practicing telemedicine and is licensed in the same state where the student is attending college and seeking health care, the physician may accept or retain the student as a patient via telemedicine.

Another alternative may be to instruct the college student to see you when he or she is “home” (assuming you are licensed in that state) during school breaks. Arrangements can be made during these visits for any needed specialty care.

As for urgent or emergency care, the college student away from home should have ready access to an appropriate local health care clinic location (student or community), acute care facility, or hospital. Most importantly, the college student should be instructed to dial 911 in the event of a real emergency.

The college student should also have your name and contact information as their “hometown” physician, especially if the college student has a chronic medical condition. This allows the student access to his or her medical record. While this may not be what the student and parents were hoping for, it may be the solution that best protects you in the appropriate practice of telemedicine.

Notes and sources

1. Texas Occupations Code, Title 3, Subtitle A. Chapter 111. Telemedicine and Telehealth. Section 111.001 (4). Available at https://statutes.capitol.texas.gov/Docs/OC/htm/OC.111.htm. Accessed August 10, 2021.
2. Marcoux, RM. Vogenberg, FR. Telehealth: Applications from a legal and regulatory perspective. Pharmacy and Therapeutics. September 2016. Available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5010268/. Accessed August 18, 2021.
3. Model policy for the appropriate use of telemedicine technologies in the practice of medicine. Federation of State Medical Boards. 2014. Available at  www.fsmb.org/Media/Default/PDF/FSMB/Advocacy/FSMB_Telemedicine_Policy.pdf. Accessed July 28, 2021.
4. Under such a limited license, an out-of-state physician may interpret diagnostic testing and report results to a Texas physician or may follow up with patients where the majority of patient care was rendered in another state. There are other statutory exceptions in Texas that are limited to episodic consultations for a Texas physician in the same specialty: providing consultations to a medical school or certain other government-related health institutions; physicians in a bordering state who order home health or hospice services for a Texas resident; furnishing medical assistance in case of an emergency or disaster where there is no fee for the assistance; and informal consultation on an irregular or infrequent basis without the expectation or exchange of compensation.
5. Texas Occupations Code, Title 3, Subtitle B. Chapter 151. General Provisions. Section 151.056. Available at https://statutes.capitol.texas.gov/Docs/OC/htm/OC.151.htm. Accessed August 20, 2021.
6. Texas Administrative Code, Title 22, Chapter 172. Temporary and Limited Licenses. Section 172.12(c). Available at https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=22&pt=9&ch=172&rl=12. Accessed August 20, 2021.
7. Texas Administrative Code, Title 22, Chapter 172. Temporary and Limited Licenses. Section 172.12(f). Available at https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=22&pt=9&ch=172&rl=12. Accessed August 20, 2021.
8. Interstate Medical Licensure Compact website. Available at https://www.imlcc.org. Accessed July 28, 2021.
9. For this discussion, the term “physician” also includes other appropriately licensed providers.
10. Texas Occupations Code. Title 3. Subtitle A. Chapter 111. Section 111.007. Standard of care for telemedicine medical services and telehealth services. Available at https://statutes.capitol.texas.gov/Docs/OC/htm/OC.111.htm. Accessed August 20, 2021.
11. Texas Occupations Code, Title 3, Subtitle A. Chapter 111. Telemedicine and Telehealth Sections 111.002; 111.003; 111.004. Available at https://statutes.capitol.texas.gov/Docs/OC/htm/OC.111.htm. Accessed August 10, 2021.
12. Texas Occupations Code. Title 3. Health professions. Chapter 562. Practice by License Holder. Subchapter A. Prescription and Substitution Requirements. Section 562.056. Practitioner-Patient Relationship Required. Available at https://statutes.capitol.texas.gov/Docs/OC/htm/OC.562.htm. Accessed August 18, 2021.
13. Texas Occupations Code, Title 3, Subtitle A. Chapter 111. Section 111.005. Practitioner-Patient Relationship for Telemedicine Medical Services. Available at https://statutes.capitol.texas.gov/Docs/OC/htm/OC.111.htm. Accessed August 20, 2021.
14. Texas Administrative Code. Title 22. Chapter 174, Subchapter A. Telemedicine. Rule 174.5 (e)(2)(A). Available at https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=22&pt=9&ch=174&rl=5. Accessed August 20, 2021.
15. Drug Enforcement Administration. U.S. Department of Justice. Diversion Control Division. Telemedicine. Available at https://www.deadiversion.usdoj.gov/coronavirus.html#TELE. Accessed August 20, 2021.
16. Texas Department of Insurance. Telemedicine emergency rule. Available at https://www.tdi.texas.gov/news/2020/telemedicine-emergency-rule.html. Accessed August 20, 2021.
17. Notification of Enforcement Discretion for Telehealth Remote Communications During the COVID-19 Nationwide Public Health Emergency. U.S. Department of Health and Human Services. Available at https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html. Accessed August 22, 2021.
18. Other helpful Texas telemedicine resources (including telemedicine white paper and various temporary telemedicine changes due to the PHE) can be found on the TMA’s website https://www.texmed.org/COVID-19/. 

19. This list should not be construed as exclusive. For additional considerations, see https://www.texmed.org/TelemedicineLaw/.