EMERGENCY RULES

Jurisdiction
Texas
Publication
Issue 20
Volume 46
Published May 14, 2021
Rule Type
Emergency Rule
Issuing Body
Board of Nursing

Notice Text

TITLE 22. EXAMINING BOARDS PART 11. TEXAS BOARD OF NURSING CHAPTER 217. LICENSURE, PEER ASSISTANCE AND PRACTICE 22 TAC §217.24 Introduction. The Texas Board of Nursing (Board) adopts emergency amendments to §217.24(e), relating to Telemedicine Medical Service Prescriptions, pursuant to a finding of imminent peril to the public health, safety, and welfare, which requires adoption in fewer than thirty (30) days' notice, as authorized by Tex. Gov't. Code §2001.034. Background On March 13, 2020, the Governor of the State 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 23, 2020, the Office of the Governor granted a waiver of 22 TAC §217.24(e)(1), which prohibits an advanced practice registered nurse (APRN) from treating chronic pain with scheduled drugs through the use of telemedicine medical services, unless otherwise permitted under federal and state law. The waiver, however, expired on June 6, 2020. The Board held a public meeting on June 8, 2020, to consider the adoption of an emergency rule to permit APRNs to treat chronic pain with scheduled drugs through the use of telemedicine medical services under certain conditions during the COVID-19 pandemic. At the conclusion of the meeting, the Board voted to adopt the emergency amendments to 22 TAC §217.24(e)(1). The emergency amendments took effect June 8, 2020; were published in the Texas Register on June 19, 2020; and expired on July 7, 2020. Because the continuation of the effects of the COVID-19 pandemic necessitated the continuation of an emergency rule beyond the July 7, 2020 expiration date, the Board held a public meeting on July 6, 2020, and again adopted emergency amendments to §217.24(e)(1). The emergency amendments took effect July 7, 2020; were published in the Texas Register on July 17, 2020; and expired on September 4, 2020. The Board again considered the need for the adoption of emergency amendments to §217.24(e)(1) in public meeting on September 4, 2020 and voted to adopt emergency amendments to §217.24(e)(1) at the conclusion of that meeting. The emergency amendments took effect September 5, 2020; were published in the Texas Register on September 18, 2020; and expired on November 3, 2020. The Board again considered the need for the adoption of emergency amendments to §217.24(e)(1) in public meeting on November 4, 2020, and voted to adopt emergency amendments to §217.24(e)(1) at the conclusion of that meeting. The emergency amendments took effect November 4, 2020; were published in the Texas Register on November 20, 2020; and expired on January 3, 2021. The Board again considered the need for the adoption of emergency amendments to §217.24(e)(1) in public meeting on December 30, 2020, and voted to adopt emergency amendments to §217.24(e)(1) at the conclusion of that meeting. The emergency amendments took effect January 3, 2021; were published in the Texas Register on January 15, 2021; and expired on March 3, 2021. Because the Board determined that the continuation of the effects of the COVID-19 pandemic necessitated the continuation of an emergency rule, the Board voted to adopt emergency amendments to §217.24(e)(1) in public meeting on February 25, 2021. The emergency amendments took effect March 4, 2021; were published in the Texas Register on March 12, 2021; and will expire on May 2, 2021. The Board has determined that the continuation of the effects of the COVID-19 pandemic necessitates the continuation of an emergency rule. Reasoned Justification. The adoption of emergency amendments to §217.24(e) is immediately necessary to allow APRNs to provide necessary treatment to established patients with chronic pain while mitigating the risk of exposure to COVID-19. Under the emergency amendments, the treatment of chronic pain with scheduled drugs through the use of telemedicine medical services by any means other than via audio and video two-way communication is prohibited, unless certain conditions are met. First, a patient must be an established chronic pain patient of the APRN. Second, the patient must be receiving a prescription that is identical to a prescription issued at the previous visit. Third, the patient must have been seen by the prescribing APRN or physician or health professional as defined in Tex. Occ. Code §111.001(1) in the last 90 days, either in-person or via telemedicine using audio and video two-way communication. These requirements are consistent with the rules adopted by the Texas Medical Board at 22 TAC §174.5 (relating to Issuance of Prescriptions) on an emergency basis, effective May 2, 2021, and the provisions of federal law that currently permit the use of telemedicine medical services for the prescription of controlled substances during the COVID-19 pandemic. Further, an APRN must exercise appropriate professional judgment in determining whether to utilize telemedicine medical services for the treatment of chronic pain with controlled substances. In order to ensure that telemedicine medical services are appropriate for the APRN to use, the adopted rule requires an APRN to give due consideration to factors that include, at a minimum, the date of the patient's last in-person visit, patient co-morbidities, and occupational related COVID-19 risks. These are not the sole, exclusive, or exhaustive factors an APRN should consider under this rule. Further, the emergency amendments only apply to those APRNs whose delegating physicians permit them to issue re-fills for patients, and the refills are limited to controlled substances contained in Schedules III through V only. If a patient is treated for chronic pain with scheduled drugs through the use of telemedicine medical services as permitted by this rule, the medical records must document the exception and the reason that a telemedicine visit was conducted instead of an in-person visit. Finally, these emergency amendments will only be in effect for a period of 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. The remaining adopted changes make conforming changes to the definitions of the terms acute pain and chronic pain, consistent with the definition used by the Texas Medical Board, in 22 TAC §170.2(2) and (4) (relating to Definitions). Statutory Authority. The emergency amendments are adopted under the authority of the Tex. Occ. Code §301.151, which authorizes the Board to adopt and enforce rules consistent with Chapter 301 and necessary to: (i) perform its duties and conduct proceedings before the Board; (ii) regulate the practice of professional nursing and vocational nursing; (iii) establish standards of professional conduct for license holders Chapter 301; and (iv) determine whether an act constitutes the practice of professional nursing or vocational nursing. The emergency amendments are also adopted pursuant to Tex. Gov't. Code §2001.034 and §2001.036(a)(2) 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. This emergency adoption also affects Texas Occupations Code Chapter 111. §217.24.Telemedicine Medical Service Prescriptions. (a) - (d) (No change.) (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) For purposes of this rule, chronic pain has the same definition as used in 22 Tex. Admin. Code §170.2(4) (relating to Definitions). [Treatment of chronic pain with scheduled drugs through use of telemedicine medical services is prohibited, unless otherwise allowed under federal and state law. For purposes of this section, "chronic pain" means a state in which pain persists beyond the usual course of an acute disease or healing of an injury. Chronic pain may be associated with a chronic pathological process that causes continuous or intermittent pain over months or years.] (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 APRN; (ii) is receiving a prescription that is identical to a prescription issued at the previous visit; and (iii) has been seen by the prescribing APRN or physician or health professional as defined in Tex. Occ. Code §111.001(1) in the last 90 days, either: (I) in-person; or (II) via telemedicine using audio and video two-way communication. (B) An APRN, when determining whether to utilize telemedicine medical services for the treatment of chronic pain with controlled substances as permitted by paragraph (1)(A) of this subsection, shall give due consideration to factors that include, at a minimum, the date of the patient's last in-person visit, patient co-morbidities, and occupational related COVID risks. These are not the sole, exclusive, or exhaustive factors an APRN should consider under this rule. (C) If a patient is treated for chronic pain with scheduled drugs through the use of telemedicine medical services as permitted by paragraph (1)(A) of this subsection, the medical records must document the exception and the reason that a telemedicine visit was conducted instead of an in-person visit. (D) The emergency amendment of this rule effective May 3, 2021, 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) For purposes of this rule, acute pain has the same definition as used in 22 Tex. Admin. Code §170.2(2) (relating to Definitions). Telemedicine medical services may be used for the treatment of acute pain with scheduled drugs, unless otherwise prohibited under federal and state law. [Treatment of acute pain with scheduled drugs through use of telemedicine medical services is allowed, unless otherwise prohibited under federal and state law. For purposes of this section, "acute pain" means the normal, predicted, physiological response to a stimulus, such as trauma, disease, and operative procedures. Acute pain is time limited.] 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-202101718 Jena Abel Deputy General Counsel Texas Board of Nursing Effective date: May 3, 2021 Expiration date: July 1, 2021 For further information, please call: (512) 305-6822