EMERGENCY RULES

Jurisdiction
Texas
Publication
Issue 20
Volume 46
Published May 14, 2021
Rule Type
Emergency Rule
Issuing Body
TEXAS MEDICAL BOARD

Notice Text

TITLE 22. EXAMINING BOARDS PART 9. TEXAS MEDICAL BOARD CHAPTER 174. TELEMEDICINE SUBCHAPTER A. TELEMEDICINE 22 TAC §174.5 The Texas Medical Board (Board) adopts, on an emergency basis, amendments to 22 TAC §174.5, effective May 2, 2021 at 12:01 a.m. On March 13, 2020, the Governor of Texas certified COVID-19 as posing an imminent threat of disaster to the public health and safety and declared a state of disaster in all counties of Texas. On March 19, 2020, the Texas Governor issued a waiver suspending the strict enforcement of §174.5(e)(2)(A) which generally prohibits the utilization of telemedicine to prescribe scheduled drugs for the treatment of chronic pain. The waiver was issued in order to protect public health and curb the spread of COVID-19 by providing patients access to schedule drugs needed to ensure on-going treatment of chronic pain and avoid potential adverse consequences associated with the abrupt cessation of pain medication. On March 1, 2021, the Board adopted, on an emergency basis, amendments to 22 TAC §174.5. Such rule is set to expire at 11:59 p.m. on May 1, 2021. Therefore, the emergency amendment to §174.5(e) is immediately necessary to help the state's physicians, physician assistants and other health care professionals continue to mitigate the risk of exposure to COVID-19 and provide necessary medical servicesrelated to issuance of prescriptions including controlled substances for patients. Pursuant to the Governor's declaration of disaster issued on March 13, 2020, related to COVID-19, physicians can continue the treatment of chronic pain with scheduled drugs for established patients after having an in-person or two-way audio and video communications telemedicine medical services within the last 90 days. The emergency amendment would allow physicians to utilize telemedicine to continue issuing previous prescription(s) for scheduled medications to established chronic pain patients, if the physician has, within the past 90 days, seen a patient in-person or via a telemedicine visit using two-way audio and video communication. Pursuant to Section 2001.034 and 2001.036(a)(2) of the Texas Government Code, the amendment is adopted on an emergency basis and with an expedited effective date because an imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days' notice. The emergency amendment shall be in effect for only 60 days or the duration of the time period that the Governor's disaster declaration of March 13, 2020 in response to the COVID-19 pandemic is in effect, whichever is shorter, pursuant to Section 2001.034 of the Texas Government Code. The emergency rule amendments are adopted under the authority of the Texas Occupations Code, §153.001, which provides authority for the Board to recommend and adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine; and enforce this subtitle. Another statute affected by this rule is Chapter 111 of the Texas Occupations Code. §174.5.Issuance of Prescriptions. (a) The validity of a prescription issued as a result of a telemedicine medical service is determined by the same standards that would apply to the issuance of the prescription in an in-person setting. (b) This rule does not limit the professional judgment, discretion or decision-making authority of a licensed practitioner. A licensed practitioner is expected to meet the standard of care and demonstrate professional practice standards and judgment, consistent with all applicable statutes and rules when issuing, dispensing, delivering, or administering a prescription medication as a result of a telemedicine medical service. (c) A valid prescription must be: (1) issued for a legitimate medical purpose by a practitioner as part of patient-practitioner relationship as set out in §111.005, of Texas Occupations Code; and (2) meet all other applicable laws before prescribing, dispensing, delivering or administering a dangerous drug or controlled substance. (d) Any prescription drug orders issued as the result of a telemedicine medical service, are subject to all regulations, limitations, and prohibitions set out in the federal and Texas Controlled Substances Act, Texas Dangerous Drug Act and any other applicable federal and state law. (e) Limitation on Treatment of Chronic Pain. Chronic pain is a legitimate medical condition that needs to be treated but must be balanced with concerns over patient safety and the public health crisis involving overdose deaths. The Legislature has already put into place laws regarding the treatment of pain and requirements for registration and inspection of pain management clinics. Therefore, the Board has determined clear legislative intent exists for the limitation of chronic pain treatment through a telemedicine medical service. (1) Treatment for Chronic Pain. For purposes of this rule, chronic pain has the same definition as used in §170.2(4) of this title (relating to Definitions). (A) Telemedicine medical services used for the treatment of chronic pain with scheduled drugs by any means other than via audio and video two-way communication is prohibited, unless (i) a patient is an established chronic pain patient of the physician; (ii) is receiving a prescription that is identical to a prescription issued at the previous visit; and (iii) has been seen by the prescribing physician or health professional, defined under Chapter 111.001(1) of the Texas Occupations Code, in the last 90 days either: (I) in-person; or (II) via telemedicine using audio and video two-way communication. (B) The emergency amendment of this rule effective May 2, 2021 at 12:01 A.M. shall be in effect for only 60 days or the duration of the time period that the Governor's disaster declaration of March 13, 2020 in response to the COVID-19 pandemic is in effect, whichever is shorter. (2) Treatment for Acute Pain. For purposes of this rule, acute pain has the same definition as used in §170.2(2) of this title. Telemedicine medical services may be used for the treatment of acute pain with scheduled drugs, unless otherwise prohibited under federal and state law. [(A) Treatment of chronic pain with scheduled drugs through use of telemedicine medical services is prohibited, unless otherwise allowed under federal and state law.] [(B) Treatment of acute pain with scheduled drugs through use of telemedicine medical services is allowed, unless otherwise prohibited under federal and state law.] The agency certifies that legal counsel has reviewed the emergency adoption and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on April 30, 2021. TRD-202101719 Scott Freshour General Counsel Texas Medical Board Effective date: May 2, 2021 Expiration date: June 30, 2021 For further information, please call: (512) 305-7016