TMA, AMA: TMB Has Authority to Set Telemedicine Rules

In a 42-page brief jointly filed with a federal appeals court, TMA and the American Medical Association argue that federal antitrust regulation does not prevent the Texas Medical Board (TMB) from establishing rules that regulate the practice of telemedicine in Texas. At issue is a TMB rule that establishes the requirement that, as described in the brief, "Dangerous drugs and controlled substances … may not be prescribed by a physician who has not either physically examined a patient or examined a patient electronically with the assistance of a qualified medical professional who is physically present with the patient."  

Teladoc, Inc., a Dallas-based telehealth provider, challenged the rule in part on the grounds that TMB's rule is anticompetitive and thus violates federal antitrust law. TMA and AMA loudly disagreed. "The State has left no doubt that the Board's challenged Rule is an exercise of State policy-making in the complex and rapidly evolving area of medical practice — not a self-interested act of market participants," TMA wrote in the brief. 

TMB, TMA argued, is acting under the articulated authority of the Medical Practice Act and is not engaged in "self-interested rulemaking by market participants" because the state has retained "ultimate control of the Board's actions" in three ways: the governor's power to appoint all TMB members, the oversight of the Texas Legislature, and the authority of the courts to review TMB actions. The case is currently pending before the Fifth U.S. Court of Appeals. 

For more information, read "Seeking Invalidation" in the April 2016 issue of Texas Medicine.

Action, Aug. 1, 2016

Last Updated On

October 10, 2016

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