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Prescribers Beware: Texas Telemedicine is in Flux

telemedicine, Texas Professional License Defense AttorneyTelemedicine, or the treatment of patients remotely using technology, can be useful in rural areas or when a physician and patient are located across state lines. However, the laws and rules surrounding telemedicine have been changing. Hence, if practicing telemedicine in Texas, it is important for licensed physicians to understand the recent changes in the law and Texas Medical Board rules.

In 2008, Congress passed the Ryan Haight Online Pharmacy Consumer Protection Act in response to concerns about people obtaining prescription medications via the Internet. The law is named after a teen who died from a prescription drug overdose—a drug he purchased online without seeing a physician.

The law mandates that a prescribing physician must assess a patient in person at least once before prescribing a drug. However, the law creates an exemption for a physician who practices telemedicine if the physician is at a location that is remote from a patient and the patient is at a DEA-registered hospital or clinic and the practitioner acts in the course of his or her practice in compliance with state law and is DEA-registered. There are additional exceptions contained in the federal law which are applicable to physicians practicing under a public health emergency, employees of the Veterans Health Administration, or practitioners who have obtained a special registration from the Attorney General, as well as others.

Moreover, the Texas Medical Board’s rules regarding telemedicine practiced by licensed physicians are complex, but are generally less strict than federal law. The rules do not require an “in person” meeting between a physician and his or her patient as long as the patient is:

  • At a hospital or other medical facility,

  • The physician is able to create a relationship with the patient, and

  • There is a qualified presenter who can examine the patient for the prescribing physician.

Recently, the Board enacted an emergency rule that would prohibit the use of telemedicine to prescribe controlled substances and require a physician to assess the patient in person before prescribing any controlled substances. But, a judge issued a temporary restraining order preventing the Board’s emergency rule from taking effect. The Board must decide how it wants to react to the judge’s ruling. Until the matter is finally settled, it is anyone’s guess as to what the rule will be in Texas.

If you practice, or are considering practicing telemedicine in Texas, you should have the assistance of an experienced Texas professional license defense attorney to navigate the federal and state laws and Board rules surrounding the practice of telemedicine. Contact Oscar San Miguel, Attorney at Law, for a consultation today.

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