by Karin Zaner, JD
Get answers to the most frequently asked questions we receive on telemedicine.
What am I required to do to practice telemedicine?
Telemedicine involves real-time physician-patient visits conducted while the provider and patient are in different locations. Generally, telemedicine visits are performed with the help of cameras and viewing screens. In Texas, the telemedicine statute, Texas Occupations Code, Chapter 111, provides that “[a] health professional providing a health care service or procedure as a telemedicine medical service, a teledentistry dental 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. (1, 2)
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 Texas Medical Board (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. (3)
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. (3)
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 Section 562.056 (which predates Chapter 111) outlines the requirements for establishing a sufficient practitioner-patient relationship before issuing prescriptions. (4)
Chapter 111 requires a physician to establish the necessary patient relationship in one of the following three ways in order to prescribe:
- the physician has a preexisting relationship with the patient;
- the physician communicates with the patient pursuant to a call coverage relationship; or
- 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 that allows the practitioner to comply with the standard of care). (5)
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. (5)
While Chapter 111 allows for various telemedicine modalities, 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 allowable treatment via telemedicine in Texas:
- state law provides that a prescription for an abortifacient issued through telemedicine is not a valid prescription; (5) and
- TMB rules state that treating chronic pain with scheduled drugs through telemedicine services by any means other than via audio and two-way video communication is prohibited, unless a patient:
a) is an established chronic pain patient of the physician or health professional issuing the prescription;
b) is receiving a prescription identical to a prescription issued at the previous visit; and
c) has been seen by the prescribing physician or health professional in the last 90 days either in-person or by telemedicine using audio and two-way video communication. (6)
Please note that effective March 1, 2020, providers must first check the Texas Prescription Monitoring Program before prescribing any opioids, benzodiazepines, carisoprodol, or barbiturates. (7)
Where do I have to be licensed to practice telemedicine?
According to the Federation of State Medical Boards, “A physician must be licensed, or appropriately authorized by, 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 diagnose, treat, or prescribe using online services sites are engaging in the practice medicine and must possess appropriate licensure in all jurisdictions where patients receive care.” (Emphasis in bold added). (8)
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” without a Texas medical license, but that physician must be registered with the TMB and pay the required fee for such license. (9, 10, 11, 12)
What if I want to practice telemedicine in other states?
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, 37 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 in 2022. (13)
Can I treat my patients via telemedicine when they are away from home (students away at college, patients who are on vacation, etc.)?
For physicians with a longstanding relationship with a patient, you may want to remain a stable resource for the patient’s health care. If the patient’s location will be in the same state that the physician is licensed, this answer is likely “yes.” (That is, provided any telemedicine services used comply with state telemedicine laws).
However, if the patient will be traveling or attending college outside the state where you practice, the answer gets more complicated. It likely depends on the laws of the state where the patient will be physically located when seeking treatment. Also complicating this issue is that certain exceptions to telemedicine laws have been enacted during the COVID-19 public health emergency (PHE), but they may not remain in place permanently.
Other considerations exist specific to treating patients who are away from home via telemedicine. Does the patient have a chronic condition like diabetes or asthma? Would the telemedicine visits be for general wellness visits only? Can the patient request a telemedicine visit for skin rashes, digestive problems, and/or flu or 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 can 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. (14)
Didn’t telemedicine laws change during COVID?
Several temporary changes to telemedicine laws have been enacted due to the COVID-19 PHE. One temporary change in Texas allows oral (telephone-only) encounters to establish a physician-patient relationship, used along with various other telemedicine modalities for the diagnosis, treatment, ordering of tests, and prescribing for all conditions.
Telephone-only encounters help address the needs of certain patient populations (elderly, disabled, rural, limited English proficiency) who may have difficulty accessing technologies used for audio-video telehealth. Covered health care providers may offer audio-only telehealth services as long as they are consistent with HIPAA Privacy, Security, and Breach Notification Rules. Additional guidance for audio-only telehealth is found online (see notes below). (15)
As mentioned, the same standard of medical care, medical record documentation, and billing standards apply in Texas whether the patient is treated via telephone, telemedicine, or in person. Consent for treatment via telemedicine should be documented in the patient’s medical record.
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. (16)
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). (16)
The TMB has permanently adopted some telemedicine rule changes to allow more flexibility in prescribing controlled substances for chronic pain via telemedicine. The current rule can be reviewed in the Texas Administrative Code, Title 22, Part 9, Chapter 174.5 Telemedicine- Issuance of Prescriptions.
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). (17)
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) announced that it would 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. (18) The Telehealth Notification will remain in effect until the Secretary of HHS declares that the COVID-19 PHE no longer exists, or upon the expiration date of the declared PHE, whichever occurs first.
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. (18)
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 and are encouraged to use secure platforms specifically developed for telemedicine.
The Federation of State Medical Boards provides an updated telehealth requirements chart for its member participants, including Texas. (19)
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. (14, 20)
Notes and sources
- For this discussion, the term “physician” also includes other appropriately licensed providers.
- 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 June 16, 2022.
- 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 June 16, 2022.
- 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 June 16, 2022.
- 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 June 16, 2022.
- 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$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=22&pt=9&ch=174&rl=5. Accessed June 16, 2022.
- Texas Prescription Monitoring Program. Texas State Board of Pharmacy. Available at https://www.pharmacy.texas.gov/pmp/. Accessed July 27, 2022.
- The appropriate use of telemedicine technologies in the practice of medicine. Federation of State Medical Boards. April 2022. Available at https://www.fsmb.org/siteassets/advocacy/policies/fsmb-workgroup-on-telemedicineapril-2022-final.pdf. Accessed June 16, 2022.
- Under such a limited license, an out-of-state physician may interpret diagnostic testing and report results to a Texas physician or may follow up with patients where the majority of patient care was rendered in another state. There are other statutory exceptions in Texas that are limited to episodic consultations for a Texas physician in the same specialty: providing consultations to a medical school or certain other government-related health institutions; physicians in a bordering state who order home health or hospice services for a Texas resident; furnishing medical assistance in case of an emergency or disaster where there is no fee for the assistance; and informal consultation on an irregular or infrequent basis without the expectation or exchange of compensation.
- Texas Occupations Code, Title 3, Subtitle B. Chapter 151. General Provisions. Section 151.056. Available at https://statutes.capitol.texas.gov/Docs/OC/htm/OC.151.htm. Accessed June 16, 2021.
- Texas Administrative Code, Title 22, Chapter 172. Temporary and Limited Licenses. Section 172.12(c). Available at https://texreg.sos.state.tx.us/public/readtac$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 June 16, 2022.
- 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 June 16, 2022.
- Interstate Medical Licensure Compact website. Available at https://www.imlcc.org. Accessed June 16, 2022.
- This list should not be construed as exclusive. For additional considerations, see https://www.texmed.org/TelemedicineLaw/.
- Guidance on How the HIPAA Rules Permit Covered Health Care Providers and Health Plans to Use Remote Communication Technologies for Audio-Only Telehealth. U.S. Department of Health and Human Services. Available at https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/hipaa-audio-telehealth/index.html. Accessed July 28, 2022.
- Drug Enforcement Administration. U.S. Department of Justice. Diversion Control Division. Telemedicine. Available at https://www.deadiversion.usdoj.gov/coronavirus.html#TELE. Accessed June 16, 2022.
- Texas Department of Insurance. Telemedicine emergency rule. Available at https://www.tdi.texas.gov/news/2020/telemedicine-emergency-rule.html. Accessed June 16, 2022.
- 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 June 16, 2022.
- U.S. States and Territories Modifying Requirements for Telehealth in Response to COVID-19. Federation of State Medical Boards. Updated July 12, 2022. Available at https://www.fsmb.org/siteassets/advocacy/pdf/states-waiving-licensure-requirements-for-telehealth-in-response-to-covid-19.pdf. Accessed July 27, 2022.
- 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/.