It's the latest salvo in a protracted legal battle over the board's authority to enforce its reading of medical practice rules as applied to telemedicine, and it started when TMB sent Teladoc a warning letter in 2011 saying its business practices violated board rules. What followed has been an almost four-year court skirmish over whether TMB adhered in that letter to agency rulemaking procedure.
Teladoc physicians treat and prescribe drugs for patients with minor health problems over the phone after a chart review and after patients complete a questionnaire. The company has been operating in Texas since 2005 and has contracts with major health insurers such as Aetna and Texas Medicaid.
In its June 2011 letter, TMB threatened disciplinary action saying that without conducting face-to-face patient examinations, Teledoc's physicians were not establishing a proper physician-patient relationship. The board cited its own rule (Section 190.8(1)(L) of Title 22 of the Texas Administrative Code), which prohibits the prescription of "any dangerous drug or controlled substance without first establishing a proper professional relationship with the patient."
Teladoc sued, claiming that because the words "face-to-face" do not appear in the rule's definition of what constitutes a proper physician-patient relationship, TMB had improperly promulgated a new rule in its letter, violating the Texas Administrative Procedures Act.
Teladoc was granted a temporary restraining order in July 2011. And while the trial court in March 2013 ruled in TMB's favor, finding that its letter was not an unpublished rule, it also suspended the board's enforcement of the rule pending appeal.
On Dec. 31, 2014, Teladoc won on appeal when the Third Court of Appeals agreed that TMB's 2011 warning letter had differentiated enough from the agency's extant rules to constitute unauthorized rulemaking.
A little more than two weeks later, on Jan. 16, TMB issued emergency rules that include provisions specifically stating a face-to-face visit or in-person examination is required before physicians can prescribe drugs over the phone.
Four days later, Teladoc sued and was granted a temporary restraining order when a court agreed there was no imminent peril to health, safety or welfare to justify the board's emergency rules.
In their deliberations, both the trial and appellate courts had considered other relevant board rules, including telemedicine rules TMB had sought to make more stringent with revisions in 2010. The Third Court of Appeals noted that the telemedicine provisions on evaluating and treating patients (Section 174.8 of Title 22 of the Administrative Code) also did not specifically include a face-to-face requirement.
In its emergency rules, TMB added the face-to-face visit or in-person evaluation requirement to both the disciplinary guidelines in chapter 190 and the telemedicine rules in chapter 174.
The next court hearing on the matter is set for Feb. 2, and the amendments under contention will be presented at the Texas Medical Board's next regular meeting on Feb. 12-13.
Action - Feb. 2, 2015
of Teladoc vs TMB
- TMB sends Teladoc a warning letter threatening disciplinary action against Teladoc's physician contractors and legal action against Teladoc for violating TMB rules on the proper establishment of a physician-patient relationship found under the Texas Administrative Code, Title 22, Chapter 190, Violation Guidelines.
- TMB told Teladoc in its letter that its physicians violate rule 190.8(1)(L), because they provide medical services over the telephone without any prior establishment of a physician-patient relationship via a face-to-face examination.
- Teladoc sues TMB claiming the contents of its letter added a new provision to existing law and therefore constituted illegal rulemaking under the Texas Administrative Procedure Act.
- Teladoc asks the Travis County District Court to void the "rule" it claims TMB established in the letter, or to remand the "rule" back to TMB for readoption through proper procedures,
- Teladoc sought summary judgment,
- The court grants Teladoc a temporary restraining order, barring TMB from enforcing its interpretation of the rule.
- TMB counter-sues with a cross-motion for summary judgment, challenging Teladoc's claim that its June 2011 letter constituted rule making, and whether the district court had jurisdiction.
The trial court rules in TMB's favor, finding that its letter was not an unpublished rule under the APA, and:
- Denies Teladoc's motion for summary judgment,
- Grants TMB's cross-motion, sustaining its jurisdictional challenge,
- Grants Teladoc's motion to supersede judgment pending appeal, finding that the harm to Teladoc from not suspending enforcement was greater than any potential harm that would cause to the TMB or the public.
Teladoc appeals the trial court's decision to Austin's Third Court of Appeals, arguing that:
- Teladoc was entitled to summary judgment under the law, reiterating that because TMB's June 2011 letter constituted a rule under the law, the trial court was wrong to issue TMB summary judgment,
- Even if Teladoc wasn't entitled to summary judgment, TMB did not meet its summary judgment burden - and the appeals court should reverse trial court's judgment and return for further proceedings.
The appellate court rules in Teladoc's favor, agreeing that the contents of TMB's letter differentiated enough from the agency's extant rules to constitute unauthorized rulemaking and declared its contents invalid.
- TMB issues Emergency Rules that include face-to-face provisions not explicitly stated in previous rule iterations.
- Teladoc sues and is granted a temporary restraining order against TMB, blocking enforcement of the new rules.