Tele-Doc Firm Sues Texas Medical Board

      AUSTIN, Texas (CN) – The Texas Medical Board declared a bogus “emergency” to require doctors to meet patients “face-to-face” before prescribing them a controlled drug, a telephone-consultation firm claims in court.
     Teladoc sued the Texas Medical Board on Jan. 20 in Travis County Court, alleging violations of the Texas Administrative Procedure Act.
     Dallas-based Teladoc calls itself “the first and largest provider of physician telehealth consultations in the United States.” It claims its services are covered by all Texans insured by Aetna, by large group employers such as AT&T, Home Depot, and MetroPCS, by 800,000 members of Texas Medicaid and by more than 300 smaller employers.
     The rule in question is 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 says the Medical Board had known about its telephone consultation business for five years when it sent a letter in 2011 threatening disciplinary action for violating board rules. The Medical Board said in the letter that it “does not believe that physicians in Texas can rely on [Teladoc’s] representations as to compliance with Texas Board rules.”
     The Medical Board allegedly “rejected Teladoc’s plain language interpretation of Section 190.8(1)(L),” and claimed that the rule “required a ‘face-to-face’ examination of a patient before any physician could prescribe any dangerous drug or controlled substance.”
     Claiming that the words “face-to-face” do not appear in the rule, Teladoc sued the Medical Board in 2011, claiming “this new interpretation was so inconsistent with the TMB’s historical interpretation and the text of Section 190.8(1)(L) that it constituted a new rule, which was invalid for want of notice and comment.”
     Teledoc says a Travis County judge granted it a temporary restraining order that July, stopping the Medical Board from enforcing its interpretation of the rule.
     Enforcement of the challenged rule remained off limits to the board even after the court granted it summary judgment in 2013, according to the complaint. Teledoc says the Austin Court of Appeals reversed in its favor in December 2014, finding that the board’s interpretation of 190.8(1)(L) in the 2011 letter qualified as a “rule” under the Administrative Procedures Act and was thus invalid.
     On Jan. 16 this year, the Medical Board allegedly adopted an “emergency” amendment to the rule, stipulating that “a face-to-face visit or in-person evaluation is required before a practitioner can issue a prescription for drugs.”
     The amendment will be presented to the board at its Feb. 12-13 meeting, Teledoc says.
     “Finally, almost 10 years after Teladoc began doing business in Texas and 16 days after losing at the Court of Appeals, the TMB declares an emergency,” Teledoc’s complaint states. “There is no imminent peril. There is no emergency. There is only a state agency ignoring its legal limitations in a blatant attempt to get its way.”
     Teledoc claims the emergency rule will hurt its business because “Teladoc’s physicians cannot conduct telephonic consultations” while aware of the threat of disciplinary action by the Medical Board. If doctors are forced to stop using its services, it will cost Teledoc millions of dollars, according to the complaint.
     “The board now has violated the APA twice by promulgating ‘rules’ without allowing affected persons opportunity for comment and without complying with the APA,” the complaint states.
     Teledoc claims that “not a single malpractice suit has been filed against Teladoc or its affiliated physicians for Teladoc telephone consultations.” Only once has the Medical Board investigated a Teladoc physician for possible violations of Section 190.8(1)(L), and that investigation was dismissed for lack of evidence, according to the complaint.
     Teladoc seeks declaratory judgment that the emergency rule is invalid and an injunction stopping its enforcement.
     It is represented by Matt Dow, with Jackson Walker, in Austin.

CORRECTION: The original version of this article misstated the description in the complaint of the December 2014 ruling by the Austin Court of Appeals. The appellate court’s reversal of summary judgment favored Teledoc. Courthouse News regrets the error.

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