BILL ANALYSIS

 

 

Senate Research Center

S.B. 1107

85R9819 EES-F

By: Schwertner; Perry

 

Health & Human Services

 

3/3/2017

 

As Filed

 

 

 

AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

 

S.B. 1107 seeks to create a clear and accountable regulatory structure regarding the establishment of a valid practitioner-patient relationship via telemedicine. Specifically, S.B. 1107 removes the existing provision that allows the Texas Medical Board (TMB) to establish rules requiring a face-to-face consultation between a patient and a physician providing a telemedicine medical service if the physician has never seen the patient, and creates a new framework for establishing a valid practitioner-patient relationship in a telemedicine encounter. Under S.B. 1107, a valid practitioner-patient relationship would be established in a telemedicine encounter if:

 

�         there is a pre-existing relationship between the provider and the patient;

 

�         the services are provided through a call coverage relationship established under TMB rules; or

 

�         the practitioner uses audio-visual interaction or store and forward technology, which may be used in conjunction with audio communications. These provisions require follow-up and that the practitioner use clinical information relevant to the encounter.

 

Additionally, S.B. 1107 creates new definitions for telemedicine and telehealth and conforms those definitions in other areas of code, defines "store and forward technology," establishes that the standard of care for a telemedicine service is the same as that for an in-person service, prohibits any agency with regulatory authority over a health professional from establishing rules that impose a higher standard of care than what is required under the bill, continues the mental health service exemptions that currently exist in TMB rules, clarifies that health plans do not have to include services provided by only synchronous or asynchronous audio interaction or a facsimile in the current telemedicine coverage mandate for fully insured plans, requires fully insured health plans to publish their policies and payment practices for telemedicine and telehealth on their websites, and requires certain agencies to both adopt rules that establish the determination of a valid prescription in accordance with Section 111.005 of S.B. 1107 and to develop and publish a frequently asked questions document related to prescriptions that result from a telemedicine encounter.

 

As proposed, S.B. 1107 amends current law relating to telemedicine and telehealth services.

 

RULEMAKING AUTHORITY

 

Rulemaking authority is expressly granted to the Texas Medical Board (TMB) in SECTION 2 (Section 111.004, Occupations Code) of this bill.

 

Rulemaking authority is jointly granted to TMB, the Texas Board of Nursing, the Texas Physician Assistant Board, and the Texas State Board of Pharmacy in SECTION 3 (Section 111.006, Occupations Code) of this bill.

 

Rulemaking authority previously granted to the Texas State Board of Medical Examiners is rescinded in SECTION 2 (Section 111.004, Occupations Code) of this bill.

 

SECTION BY SECTION ANALYSIS

 

SECTION 1. Amends Section 111.001, Occupations Code, by amending Subdivision (2) and adding Subdivisions (3) and (4), as follows:

 

(2) Defines "store and forward technology."

 

(3) Redefines "telehealth service."

 

(4) Redefines "telemedicine medical service."

 

SECTION 2. Amends Section 111.004, Occupations Code, as follows:

 

Sec. 111.004. RULES. Authorizes the Texas Medical Board (TMB), rather than the Texas State Board of Medical Examiners, in consultation with the commissioner of insurance, as appropriate, to adopt rules necessary to:

 

(1) and (2) makes no changes to these subdivisions;

 

(3) and (4) makes nonsubstantive changes. Deletes existing text of Subdivision (5) relating to a face-to-face consultation between a patient and a physician providing a telemedicine medical service.

 

SECTION 3. Amends Chapter 111, Occupations Code, by adding Sections 111.005 through 111.008, as follows:

 

Sec. 111.005. PRACTITIONER-PATIENT RELATIONSHIP FOR TELEMEDICINE MEDICAL SERVICES. (a) Provides that for purposes of Section 562.056 (Practitioner-Patient Relationship Required), a valid practitioner-patient relationship is present between a practitioner providing a telemedicine medical service and a patient receiving the telemedicine medical service as long as the practitioner complies with the standard of care described in Section 111.007 and the practitioner meets certain criteria.

 

(b) Requires a practitioner who provides telemedicine medical services to a patient to provide the patient with guidance on appropriate follow-up care and if the patient consents and the patient has a primary care physician, provide to the patient's primary care physician within 72 hours after the 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.

 

(c) Provides that notwithstanding any other provision of this section, a practitioner-patient relationship is not present if a practitioner prescribes an abortifacient or any other drug or device that terminates a pregnancy.

 

Sec. 111.006. COORDINATION TO ADOPT RULES THAT DETERMINE VALID PRESCRIPTION. (a) Requires TMB, the Texas Board of Nursing (BON), the Texas Physician Assistant Board (PAB), and the Texas State Board of Pharmacy (TSBP) to jointly adopt rules that establish the determination of a valid prescription in accordance with Section 111.005. Requires that rules adopted under this section allow for the establishment of a practitioner-patient relationship by a telemedicine medical service provided by a practitioner to a patient in a manner that complies with Section 111.005(a)(3).

 

(b) Requires TMB, BON, PAB, and TSBP to jointly develop and publish on each respective board's Internet website responses to frequently asked questions relating to the determination of a valid prescription issued in the course of the provision of telemedicine medical services.

 

Sec. 111.007. STANDARD OF CARE FOR TELEMEDICINE MEDICAL SERVICES AND TELEHEALTH SERVICES. (a) Provides that a health professional providing a health care service or procedure as a telemedicine medical 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.

 

(b) Prohibits an agency with regulatory authority over a health professional from adopting rules pertaining to telemedicine medical services or telehealth services that would impose a higher standard of care than the standard described in Subsection (a).

 

Sec. 111.008. MENTAL HEALTH SERVICES EXCLUDED. Provides that this chapter does not apply to mental health services.

 

SECTION 4. Amends Section 562.056, Occupations Code, by adding Subsection (c), as follows:

 

(c) Provides that for purposes of this section, a valid practitioner-patient relationship is present between a practitioner providing telemedicine medical services and the patient receiving the telemedicine medical services if the practitioner has complied with the requirements for establishing such a relationship in accordance with Section 111.005.

 

SECTION 5. Amends Section 1455.001(3), Insurance Code, by redefining "telehealth service" and "telemedicine medical service."

 

SECTION 6. Amends Section 1455.004, Insurance Code, by adding Subsection (c), as follows:

 

(c) Provides that notwithstanding Subsection (a), a health benefit plan is not required to provide coverage for a telemedicine medical service or a telehealth service provided by only synchronous or asynchronous audio interaction or a facsimile.

 

SECTION 7. Amends Chapter 1455, Insurance Code, by adding Section 1455.006, as follows:

 

Sec. 1455.006. TELEMEDICINE MEDICAL SERVICES AND TELEHEALTH SERVICES STATEMENT. Requires each issuer of a health benefit plan to adopt and display in a conspicuous manner on the health benefit plan issuer's Internet website the issuer's policies and payment practices for telemedicine medical services and telehealth services.

 

SECTION 8. Amends Sections 531.001(7) and (8), Government Code, to redefine "telehealth service" and "telemedicine medical service."

 

SECTION 9. Amends Section 771.151(7), Health and Safety Code, by redefining "telemedicine medical service."

 

SECTION 10. (a) Effective date, except as provided by Subsection (b): upon passage or September 1, 2017.

 

(b) Effective date, Section 1455.006, Insurance Code: September 1, 2017.