(February 5th, 2015) The Texas Medical Board recently set forth a proposed rule that would dictate what physicians must do in order to prescribe certain medications or face sanctions. Under the proposed rule, Texas physicians must establish a defined physician-patient relationship in order to prescribe any dangerous drug or controlled substance. This relationship must include, at a minimum, establishing a diagnosis through a physical examination. Importantly, this examination must be performed through a valid face-to-face visit or in-person evaluation.
The face-to-face visit or in-person evaluation does not necessarily have to occur “in person”; physicians may use sufficient medical and technological equipment – such as a two-way, real time video conferencing device – that allows the physician to hear, see, and properly evaluation the patient. Nevertheless, the patient must still be located at an “established medical site”, which does not include the patient’s home.
The defined physician-patient relationship also requires the physician to establish that the patient is, in fact, who they claim to be. The physician must also review a patient’s history and perform a mental status examination before providing an online prescription.
The proposed rule also states that the use of online questionnaires, or questions and answers exchanged through email, electronic text or chat, or telephone evaluation of or consultation with a patient are inadequate to establish a valid physician-patient relationship.
Many states prohibit physicians from prescribing based only upon an online questionnaire. For the Texas Medical Board, they appear to be taking an even firmer position by not allowing an online prescription based upon a relationship enhanced through telephone consultations, emails, or texts.
It remains to be seen whether the Texas Medical Board follows through with the proposed rule. Recently, a Texas Court of Appeals vacated the Board’s disciplinary action against a provider who had prescribed medications to a patient based on physician consults conducted over the phone. The disciplinary action had been based on informal guidance and the court determined that this informal decree constituted a substantive change to the regulations, which would require the Board to follow established rulemaking procedures. Nevertheless, providers should stay tuned to the Board’s ongoing determination with regards to this matter.
Robert Saltaformaggio, Esq., serves as an Associate at Liles Parker, Attorneys & Counselors at Law. Liles Parker attorneys represent health care providers around the country in connection with Medicare, Medicaid and private payor audits. The Firm also represents health care providers in connection with HIPAA Omnibus Rule risk assessments, privacy breach matters, State Licensure Board inquiries and regulatory compliance reviews. For a free consultation, call Robert at: 1 (800) 475-1906