2023S0249-1 03/06/23
By: Campbell, Schwertner S.B. No. 2527
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of telemedicine medical services,
teledentistry services, and telehealth services; providing a civil
penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 111.001, Occupations Code, is amended by
amending Subdivision (1) and adding Subdivision (1-a) to read as
follows:
(1) "Controlled substance" has the meaning assigned by
Section 481.002, Health and Safety Code.
(1-a) "Dentist," "health professional," and
"physician" have the meanings assigned by Section 1455.001,
Insurance Code.
SECTION 2. Section 111.002(a), Occupations Code, is amended
to read as follows:
(a) A treating physician, dentist, or health professional
who provides or facilitates the use of telemedicine medical
services, teledentistry dental services, or telehealth services
shall:
(1) ensure that the informed consent of the patient,
or another appropriate individual authorized to make health care
treatment decisions for the patient, is obtained before
telemedicine medical services, teledentistry dental services, or
telehealth services are provided; and
(2) with respect to health care treatment for a
patient who is a minor, develop and implement protocols requiring
that an individual authorized to make health care treatment
decisions for the minor patient:
(A) is present at the initial appointment or
meeting with the minor patient; and
(B) consents to the treatment of the minor
patient.
SECTION 3. The heading to Section 111.005, Occupations
Code, is amended to read as follows:
Sec. 111.005. PRACTITIONER-PATIENT RELATIONSHIP FOR
TELEMEDICINE MEDICAL SERVICES, [OR] TELEDENTISTRY DENTAL SERVICES,
OR TELEHEALTH SERVICES.
SECTION 4. Sections 111.005(a) and (b), Occupations Code,
are amended to read as follows:
(a) For purposes of Section 562.056, a valid
practitioner-patient relationship is present between a
practitioner providing a telemedicine medical service, [or a]
teledentistry dental service, or telehealth service and a patient
receiving the service as long as the practitioner complies with the
standard of care described in Section 111.007 and the practitioner:
(1) has a preexisting practitioner-patient
relationship with the patient established in accordance with rules
adopted under Section 111.006;
(2) communicates, regardless of the method of
communication, with the patient pursuant to a call coverage
agreement established in accordance with:
(A) Texas Medical Board rules with a physician
requesting coverage of medical care for the patient; or
(B) State Board of Dental Examiners rules with a
dentist requesting coverage of dental care for the patient; or
(3) provides the telemedicine medical services, [or]
teledentistry dental services, or telehealth services through the
use of one of the following methods, as long as the practitioner
complies with the follow-up requirements in Subsection (b), and the
method allows the practitioner to have access to, and the
practitioner uses, the relevant clinical information that would be
required in accordance with the standard of care described in
Section 111.007:
(A) synchronous audiovisual interaction between
the practitioner and the patient in another location;
(B) [asynchronous store and forward technology,
including] asynchronous store and forward technology in
conjunction with synchronous audio interaction between the
practitioner and the patient in another location, as long as the
practitioner uses clinical information from:
(i) clinically relevant photographic or
video images, including diagnostic images; or
(ii) the patient's relevant clinical
records, such as the relevant medical or dental history, laboratory
and pathology results, and prescriptive histories; or
(C) another [form of audiovisual
telecommunication] technology platform that:
(i) allows the practitioner to comply with
the standard of care described in Section 111.007; and
(ii) complies with the privacy requirements
of the Health Insurance Portability and Accountability Act of 1996
(Pub. L. No. 104-191).
(b) A practitioner who provides telemedicine medical
services or telehealth services to a patient as described by [in]
Subsection (a)(3) shall:
(1) provide the patient with guidance on appropriate
follow-up care; and
(2) at the request of the patient [if the patient
consents and the patient has a primary care physician], provide to
the patient's primary care physician not later than [within] 72
hours after the patient's request [practitioner provides the
services to the patient] a medical record or other report
containing an explanation of the treatment provided by the
practitioner to the patient and the practitioner's evaluation,
analysis, or diagnosis, as appropriate, of the patient's condition.
SECTION 5. Chapter 111, Occupations Code, is amended by
adding Section 111.0055 to read as follows:
Sec. 111.0055. EMERGENCY PROCEDURES. (a) A health
professional who provides telemedicine medical services or
telehealth services to a patient as described by Section
111.005(a)(3) shall develop and implement emergency protocols that
are appropriate to the standard of care that applies to the
services. The emergency protocols must be in writing and include
procedures for making a good faith effort to:
(1) determine the patient's location if the patient is
unable to provide the location to the health professional; and
(2) provide the name, location, and contact
information of the patient to emergency services in oral, written,
or digital form.
(b) If an emergency arises while a health professional is
providing telemedicine medical services or telehealth services to a
patient as described by Section 111.005(a)(3), the professional
shall make a good faith effort to:
(1) directly contact and coordinate with emergency
services located near the patient's location; and
(2) if the emergency arises while the health
professional is connected to the patient by a synchronous
technology, remain connected to the patient until emergency
services have reached the patient's location or the emergency is
resolved.
SECTION 6. Section 111.008, Occupations Code, is amended to
read as follows:
Sec. 111.008. APPLICATION OF CHAPTER TO MENTAL HEALTH
SERVICES [EXCLUDED]. Except as provided by Section 113.004, this
[This] chapter applies [does not apply] to mental health services.
SECTION 7. The heading to Section 111.009, Occupations
Code, is amended to read as follows:
Sec. 111.009. LIMITATION ON CERTAIN PRESCRIPTIONS AS
TELEDENTISTRY SERVICES.
SECTION 8. Section 111.009(a), Occupations Code, is amended
to read as follows:
(a) In this section:
(1) "National holiday" means a day described by
Section 662.003(a), Government Code.
(2) "Opiate" ["Controlled substance," "opiate,"] and
"prescribe" have the meanings assigned by Section 481.002, Health
and Safety Code.
[(2) "National holiday" means a day described by
Section 662.003(a), Government Code.]
SECTION 9. Chapter 111, Occupations Code, is amended by
adding Sections 111.010, 111.011, 111.012, and 111.013 to read as
follows:
Sec. 111.010. LIMITATION ON CERTAIN PRESCRIPTIONS AS
TELEMEDICINE MEDICAL SERVICES AND TELEHEALTH SERVICES. (a) A
health professional who provides telemedicine medical services or
telehealth services to a patient may not allow a patient to select a
particular controlled substance unless the patient has been
examined and diagnosed by the professional.
(b) A health professional who offers telemedicine medical
services or telehealth services may not enter into a contract that:
(1) provides a financial or other incentive to the
health professional based on the professional prescribing a
particular controlled substance to a patient as a telemedicine
medical service or telehealth service;
(2) compensates the health professional based on the
number of prescriptions for controlled substances prescribed to
patients as telemedicine medical services or telehealth services;
or
(3) requires that the health professional prescribe a
certain number of controlled substance prescriptions to patients as
telemedicine medical services or telehealth services.
(c) A violation of this section is grounds for disciplinary
action against the health professional by the agency with
regulatory authority over the professional.
Sec. 111.011. ADDITIONAL REGULATION OF CERTAIN
PRESCRIPTIONS AS TELEMEDICINE MEDICAL SERVICES AND TELEHEALTH
SERVICES; ENFORCEMENT. (a) A person may not:
(1) advertise, offer, or award a financial or other
incentive to a health professional who offers telemedicine medical
services or telehealth services based on the professional
prescribing a particular controlled substance to a patient as a
telemedicine medical service or telehealth service;
(2) compensate a health professional who offers
telemedicine medical services or telehealth services based on the
number of prescriptions for controlled substances prescribed by the
professional to patients as telemedicine medical services or
telehealth services; or
(3) advertise that a health professional who offers
telemedicine medical services or telehealth services will:
(A) prescribe to a patient a particular
controlled substance as a telemedicine medical service or
telehealth service; or
(B) allow a patient to select a particular
controlled substance without the patient being examined and
diagnosed by the professional.
(b) A person who violates Subsection (a) is liable to this
state for a civil penalty in an amount of not less than $100,000 for
each violation. The attorney general may bring an action to collect
a civil penalty imposed under this subsection and, in the name of
this state, to enjoin a violation of Subsection (a). The attorney
general is entitled to recover reasonable expenses incurred in
bringing an action under this subsection, including reasonable
attorney's fees and court costs.
(c) Any person may bring a civil action against any person
who violates Subsection (a). If a claimant prevails in an action
brought under this subsection, the court shall award:
(1) injunctive relief sufficient to prevent the
defendant from violating Subsection (a);
(2) statutory damages in an amount of not less than
$100,000 for each violation of Subsection (a); and
(3) reasonable attorney's fees and court costs.
Sec. 111.012. PRESCRIPTION OF CONTROLLED SUBSTANCES FOR
CHRONIC PAIN. (a) No controlled substance may be prescribed,
delivered, distributed, or dispensed through telemedicine unless
the health professional has conducted at least one in-person visit
with a patient that has established chronic pain.
(b) A health professional may refill an established chronic
pain patient's controlled substance prescription through
telemedicine between in-person visits, but the professional must
evaluate the patient through telemedicine in order to refill a
controlled substance prescription.
(c) A health professional must conduct an in-person
evaluation of a patient not later than 90 days after every
telemedicine appointment where a controlled substance is
prescribed or refilled to address chronic pain.
Sec. 111.013. REGULATOR ENFORCEMENT. (a) A health
professional that prescribes controlled substances through
telemedicine, or an affiliated telehealth entity or group, shall
file a report annually with the agency or board with regulatory
authority over the professional, entity, or group for audit and
review to ensure, at minimum, that a proper physician-patient
relationship had been established for the prescribing and that the
standard of care has been met. Failure to submit such a report
shall be considered unprofessional conduct. A violation of this
subsection is grounds to revoke the health professional's license
within their scope of practice.
(b) The attorney general may review any report submitted
under Subsection (a) to ensure compliance with all applicable laws
and regulations, including during the course of any investigation
of a serious injury or death reasonably attributed to a
prescription drug.
(c) Any agency or board with regulatory authority over a
health professional who is authorized to prescribe a controlled
substance shall adopt rules concerning the contents and submission
of the report required under this section.
SECTION 10. Chapter 113, Occupations Code, is amended by
adding Sections 113.003 and 113.004 to read as follows:
Sec. 113.003. LIMITATIONS ON TELEMEDICINE OR TELEHEALTH
PRESCRIPTIONS BY MENTAL HEALTH PROFESSIONALS. (a) A health
professional that provides a mental health service through
telehealth services may prescribe a controlled substance through a
synchronous audiovisual platform if the health professional has
conducted at least one prior visit with the patient either
in-person or through a synchronous audiovisual platform.
(b) Before prescribing a controlled substance through a
synchronous audiovisual platform, the health professional must
make a good faith effort to ensure that the patient has not been
prescribed the same controlled substance from another health
professional within the 30-day period before the appointment with
the patient.
(c) If the health professional prescribed the first
controlled substance prescription for a patient through
telemedicine or telehealth, then the professional must evaluate the
patient through telehealth or telemedicine or in person in order to
refill a controlled substance prescription.
Sec. 113.004. USE OF CERTAIN ASYNCHRONOUS COMMUNICATION
TECHNOLOGIES. (a) Except as provided by Subsection (b) and
notwithstanding any other law, a health professional may provide a
mental health service that is within the scope of the
professional's license, certification, or authorization through
the use of a telemedicine medical service or a telehealth service to
a patient by using asynchronous store and forward technology,
regardless of whether that technology is used in conjunction with
synchronous audio interaction between the professional and the
patient.
(b) A health professional that provides a mental health
service through the use of asynchronous store and forward
technology that is not used in conjunction with synchronous audio
interaction between the professional and the patient may not write
a prescription for the patient as a mental health service.
SECTION 11. Section 562.056(c), Occupations Code, is
amended to read as follows:
(c) For purposes of this section and Section 562.112, a
valid practitioner-patient relationship is present between a
practitioner providing telemedicine medical services, [or]
teledentistry dental services, or telehealth services and the
patient receiving the services if the practitioner has complied
with the requirements for establishing such a relationship in
accordance with Section 111.005.
SECTION 12. Section 111.010(b), Occupations Code, as added
by this Act, applies only to a contract entered into on or after the
effective date of this Act.
SECTION 13. This Act takes effect September 1, 2023.