Teladoc sees the lines of telemedi-
cine more broadly, but even if Teladoc comes out on top of the legal battle, TMB is still likely to change the rules of telemedicine to forbid Teladoc’s practices.
“To be able to look at them and see them and touch them — that tells you what’s wrong with people.”
FACE-TO-FACE Teladoc, Inc. v. Texas Medical Board stems from a June 2011 letter to Te- ladoc, in which TMB said physicians working with the company were jeopardizing their licenses by failing to “establish a proper professional relationship with the patient,” which TMB argued includes conducting an initial face-to-face meeting before providing treatment remotely. Teladoc sued TMB, arguing the let-
ter constituted an “unpublished rule” in violation of the state’s Administra- tive Procedure Act (APA). TMB ar- gued its letter merely restated its ex- isting requirements for telemedicine. Dr. Curran says he served as an
expert witness in the case. In his tes- timony, he agreed with TMB’s stance on face-to-face visits being essential to patient care. Further, he testified that Teladoc
offered no care plan and no follow-up care for patients. “What Teladoc was doing was treat-
ing patients on the phone who had never been seen in person,” he said. Both Teladoc and TMB asked the
district court for a summary judgment. TMB came out on top, with the court concluding TMB’s letter was not an unpublished rule. Teladoc appealed. On Dec. 31, 2014, the Texas Third
District Court of Appeals reversed the lower court ruling and held that TMB violated APA by altering rules related
to telemedicine without initiating the formal rulemaking process. As of February, TMB had filed pre-
liminary documents with the Texas Supreme Court but had not yet filed an appeal. Mari Robinson, executive director
of TMB, says the board found the ap- peals court’s decision to be a “public emergency,” and TMB adopted an emergency rule Jan. 16, which states, effective immediately, “a face-to-face visit or in-person evaluation is re- quired before a practitioner can issue a prescription for drugs.” Teladoc sought and won a tempo-
rary restraining order against TMB Jan. 20 that prevented TMB from enforcing its emergency rule and al- lowed Teladoc to continue to operate under its current model. TMB is now in the process of formally amending its rule to clarify that physicians must conduct a physical examination of a new patient before they can provide care using telemedicine. “Proposed rule amendments were
approved for publication and com- ment at TMB’s February meeting and will be considered for final adoption in April,” Ms. Robinson said. Austin orthopedic specialist and
TMA Past President Bruce Malone, MD, testified for TMB at a Feb. 2 hear- ing to defend its emergency rule. “To summarize [my testimony], I
think that no doctor can properly di- agnose a condition by phone question- naire and no face-to-face [meeting],” he said. “When I answer an emergen- cy call at night from an established pa- tient, I am not diagnosing their condi- tion, I am only deciding whether they need an emergency face-to-face meet- ing to do so. I think it is important that
+ 46 TEXAS MEDICINE April 2015
Read the court of appeals decision: tma.tips/TMBvTeladocAppealsCourt
Read the most recent Supreme Court documents in the case: tma.tips/TMBvTeladocSupremeCourt
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