The opinion
ACCEPTED
03-15-00061-CV
03-15-00061-CV 3913131
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/27/2015 12:04:11 PM
JEFFREY D. KYLE
CLERK
D-l-GN-15-000238
Cause No. D-1-GN-15-000238
Cause
TELADOC, INC.,
TELADOC, §§ THE DISTRICT
IN THE
IN COURT
DISTRICT COURT
FILED IN
Plaintiff, §§ 3rd COURT OF APPEALS
AUSTIN, TEXAS
v. §§ 53rd JUDICIAL DISTRICT
JUDICIAL DISTRICT
1/27/2015 12:04:11 PM
§§
JEFFREY D. KYLE
TEXAS MEDICAL BOARD,
TEXAS MEDICAL BOARD, §§ Clerk
Defendant.
Defendant. §§ TRAVIS TEXAS
COUNTY, TEXAS
TRAVIS COUNTY,
MOTION TO
MOTION TO TRANSFER
TRANSFER
TO THE
TO HONORABLE THIRD
THE HONORABLE COURT OF
THIRD COURT APPEALS
OF APPEALS
COMES NOW
COMES NOW Honorable Gisela Triana, Judge of the 200 th
2001]‘ District Court of
by Teladoc, Inc., Plaintiff in Cause
Travis County, Texas, joined by D-l-GN-l5-
Cause No. D-1-GN-15-
000238 pending in this court, and requests that this action be transferred to the
000238
Honorable Court of Appeals for the Third Court of Appeals District pursuant to
TEX.
T GOV'T
EX. G CODE
OV'T C ODE §
§ 2001.038(f) show as follows:
would show
2001 .038(f) and as grounds therefor would
I.
filed this suit alleging invalidity of an emergency rule
Plaintiff Teladoc filed
adopted by
by the Texas Medical Board (“TMB”) on January 16, A true and
16, 2015. A
copy of the Petition is attached as Exhibit 1.
correct copy 1.
was held on
Hearing on Teladoc’s request for Temporary Restraining Order was on
by its general counsel and an
January 20, 2015, with Defendant represented by
General. After argument
Assistant Attorney General. by both parties the Court issued its
by
MOTION TO
MOTION TO TRANSFER
TRANSFER Page 11
Temporary Restraining Order. A true and correct copy of the Temporary
A
Restraining Order is attached as Exhibit 2.
on temporary injunction is set for February 2, 2015
Hearing on TMB has
2015 and TMB
not agreed to extend the temporary restraining order despite having done so in the
which resulted in the Court of
previous litigation which of Appeals Opinion of
December 31, 2014.
December
II.
TMB submitted its Order Adopting Emergency
In argument, Defendant TMB Emergency
A true and correct copy of
Rule. A TMB’s Order Adopting Emergency
of the TMB’s Emergency Rule is
TMB’s Order states in part as follows:
attached as Exhibit 3. The TMB’s follows:
December 31, 2015
Board further determined that the December
“The Board
by the Third Court of Appeals created an absence of such
[sic] ruling by
parameters and requirements, thereby allowing practitioners the
ability to prescribe drugs, without ever seeing a patient;
patient; thus resulting
imminent peril to public health, safety and welfare.”
in imminent
The TMB’s interpretation of
The Court does not agree with TMB’s of the December 31,
31,
2014 The Court does find that by
2014 ruling of the Court of Appeals. The Emergency
by its Emergency
comment by
Rule, adopted without notice or opportunity for comment by Teladoc and the
members of
numerous members
employers and numerous who have used the
of the public in Texas who
2
services of Teladoc physicians for nine years, TMB intends to deny further
provision of those services to the public.
WHEREFORE, premises considered, the Honorable Gisela Triana, joined by
Teladoc, Inc., requests this action be transferred to the Honorable Court of Appeals
for the Third Court of Appeals District in accord with TEX. GOv’T CODE
§ 2oo1.o38(r).
Re pectfully submitted,
£35!‘ £3 Emu.» .
Hon. Gisela Triana
JACKSON WALKER L.L.P.
By: Dow
/s/ Matt
Matt Dow
State Bar No. 06066500
Dudley D. McCal1a
State Bar No. 13354000
100 Congress, Suite 1100
Austin, TX 78701
(512)236-2000
(512) 236-2002 - Fax
ATTORNEYS FOR PLAINTIFF
TELADOC, INC.
zs'a?1s2-*563&=t
CERTIFICATE OF
CERTIFICATE CONFERENCE
OF CONFERENCE
Tex. R. App. P.10.1(a)((5),
Pursuant to Tex. was held on January 22,
P.10.1(a)((5), a conference was
Ted Ross, Assistant Attorney General, counsel for Respondent
2015 with Ted
2015
concerning the merits of this motion. Respondent opposes the motion.
/s/Dudley D. McCalla
/s/ Dudley D. McCalla
McCalla
Dudley D. McCalla
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
on this 27
This is to certify that on th
27”‘ day of January, 2015, a true and correct
copy of the foregoing document
copy of was served via
document was on the parties listed
Via fax and email on
below:
below:
Ted Ross
Ted
of the Attorney General of
Office of of Texas
Box 12548
P.O. Box 12548
78711-2548
Austin, Texas 78711-2548
512-474-1062
Fax: 512-474-1062
Ted.Ross@texasattomeVgeneral.goV
Email: Ted.Ross@texasattorneygeneral.gov
/s/ Dow
/s/ Matt
Matt
Dow
Dow
Matt Dow
l203l78lv.3
12031781v.3
4
Exhibit 1
Exhibit
1/20/2015 10:21:45
1/20/2015 AM
10:21 :45 AM
Velva Price
Velva L. Price
Clerk
District Clerk
D-1-GN-15-000238
D-1-GN-15-000238 Travis °°""‘V
T"""'S County
Cause
Cause NO_
No. - - - - - - D-1-GN-15-000238
D-1-GN-15-000238
TELADOC, INC.,
TELADOC, lNC., § THE DISTRICT
IN THE
IN COURT OF
DISTRICT COURT OF
Plaintiff, §
§
v. §
§
f03<0'if403f47><0'3€4O')f47><0'3E-0':C(7J
TRAVIS
TRAVIS COUNTY, TEXAS
COUNTY, TEXAS
§
§
§
TEXAS MEDICAL BOARD,
TEXAS MEDICAL BOARD, §
Defendant. § 533 JUDICIAL DISTRICT
53rd JUDICIAL DISTRICT
PLAINTIFF'S ORIGINAL PETITION
VERIFIED ORIGINAL
PLAINTIFF’S VERIFIED PETITION FOR DECLARATORY JUDGMENT
FOR DECLARATORY JUDGIVIENT
AND APPLICATION
AND FOR INJUNCTIVE
APPLICATION FOR INJUNCTIVE RELIEF
RELIEF
TO
TO THE HONORABLE JUDGE
THE HONORABLE JUDGE OF THE DISTRICT
OF THE DISTRICT COURT:
COURT:
NOW COMES Teladoc, Inc. ("Teladoc")
NOW COMES and files
(“Teladoc”) and of
complaining of
files this original petition complaining
actions taken by Texas Medical
by the Texas Medical Board (“TMB”) and
Board ("TMB") shows as follows:
of action shows
and for cause of
LAWSUIT
THIS LAWSUIT
THIS
of Appeals
Court of
After losing at the Austin Court on December
Appeals on 2014 in a related case, TMB
December 31, 2014 TMB
emergency where
continues to ignore its legal limitations as a state agency, pronounces an emergency none
where none
exists and emergency rule (22 T.A.C. §§190.8(1)(L))
and issues an emergency 190.8(1 )(L)) Texas
of the Texas
in violation of
Administrative Procedure
Procedure Act (“APA”). Accordingly, Teladoc
Act ("APA"). Teladoc asks for declaratory relief from
from
the Court TMB’s emergency
Court declaring that the TMB's emergency rule is invalid and of the
and enjoining enforcement ofthe
emergency rule.
emergency
DISCOVERY
DISCOVERY
I.
l. Teladoc of Texas
under Level 2 of
Teladoc intends to conduct discovery under of Civil
Texas Rules of
Procedure 190.3.
Procedure
AND SERVICE
PARTIES AND
PARTIES SERVICE OF PROCESS
OF PROCESS
2. Teladoc Delaware company
Teladoc is a Delaware Texas doing
company domiciled in Dallas, Texas doing business in
Travis County, Texas.
3. The Texas
The Texas Medical Board
Board is the state agency charged of the
charged with administration of
Texas Medical
Texas Medical Practice Act, Chapters 151-159 Texas Occupation
of the Texas
151-159 of and lawful rules
Occupation Code, and
and regulations promulgated
and TMB may
promulgated pursuant to that Act. TMB may be
be served with process by
by serving
Mari Robinson, at 333
its Executive Director, Mari Tower 3, Suite 610, Austin, Texas
333 Guadalupe, Tower Texas
78701.
78701.
AND VENUE
JURISDICTION AND
JURISDICTION VENUE
4. Teladoc brings this suit for declaratory relief under
Teladoc of TEX.
under the authority of GOV’T.
TEX. Gov'T.
CODE 2001.038 and
CODE §§ 2001.038 and the Uniform Judgment Act, TEX.
Unifonn Declaratory Judgment TEX. Crv. & REM.
PRAC. &
CIV. PRAC. CODE
REM. CODE
§§ 37.001 et seq. Teladoc
Teladoc brings its application for injunctive relief under of TEX.
under the authority of TEX.
PRAC. &
CIV. PRAC. & REM. CODE § 65.001, et seq.
REM. CODE§
FACTS
TMB and
Teladoc, the TMB and Section 190.8(1)(L)
5. In November 190.8(l)(L) of
November 2003, Section 190.8(1)(L) ofthe Texas
of Title 22 ofthe Texas Administrative
Code (the "Rule")
Code was adopted, after proper notice and
“Rule”) was comment under the Administrative
and comment
Procedures Act “APA”). That section, which
Act (the "APA"). which has not been
been changed amended materially
changed or amended
since its adoption, prohibits the prescription of “any dangerous drug
of "any drug or controlled substance
1
The Rule states
patient?” The
first establishing a proper professional relationship with the patient."
without first
further:
(i) A proper relationship, at a minimum
(i) A minimum requires:
'
Teladoc physicians do
Teladoc The term "dangerous
do not prescribe controlled substances. The drug” includes many
“dangerous drug" many
common “dangerous” but simply require a prescription from a physician.
common medications that are not "dangerous"
2
who the person claims
(I) establishing that the person requesting the medication is in fact who
to be;
(ll) establishing a diagnosis through the use of
(II) of acceptable medical practices such as
patient history, mental status examination, physical examination, and and appropriate
diagnostic and An online or telephonic evaluation by
and laboratory testing. An by questionnaire is
inadequate;
and the evidence for it,
(III) discussing with the patient the diagnosis and it, the risks and
and
benefits of various treatment options; and
benefits of
of the licensee or coverage of
(IV) ensuring the availability of of the patient for appropriate
follow-up care.
6. Texas-based company,
Teladoc, a Texas-based and largest provider of
company, is both the first and of
physician
physician telehealth consultations in the United States. Since introducing its cost effective,
modern approach to Texas
modern TeIadoc’s services have been incorporated into both private
Texas in 2005, Teladoc's
and public health plans. Teladoc
and now provides its services to the entire commercially-insured
Teladoc now
population of Aetna of Texas, as well as several large group
Aetna in the State of group employers such as
AT&T, Home Depot, Rent-
AT&T, Home Rent- A-Center, MetroPCS, and
and MetroPCS,
A—Center, and and over three hundred
hundred smaller employers
Aetna plans. Teladoc
non- Aetna
through non- members of
Teladoc also covers approximately 800,000 members of the Texas
Texas
State Medicaid managed care population, approximately 25,000 individuals within the Medicare
Medicaid managed Medicare
number of
and a number
population, id., and Human Services
of children in foster care for the Texas Health and Human
Commission.
Commission.
7. Texas in 2005, not a single malpractice suit has been
Since beginning operation in Texas
filed
tiled against Teladoc or its affiliated physicians for Teladoc telephone consultations. Indeed,
was only one
there was one prior instance in which TMB even inquired whether a Teladoc physician
which the TMB
might have
might have violated Section 190.8(1
l90.8(1)(L). TMB notified
)(L). In February 2006, the TMB notified Dr. Robert
Kramer, a Teladoc physician, that it was investigating him
it was him for a potential "failure
“failure to establish the
patient-physician relationship as per Board rule 190.8(1
Board l90.8(1)(L).” and
)(L)." See Exhibit 11 attached hereto and
3
That investigation lasted less than four months,
by reference for all purposes. That
incorporate herein by
being 2006 "because
June 2006
being dismissed in June “because the Board was insufficient evidence
Board determined there was evidence to
of the Medical
prove that a violation of Act occurred."
Medical Practice Act occurred.”
8. aware of Teladoc's
Despite being fully aware Teladoc’s telehealth services model five
model for at least five
TMB made
years, the TMB made no
no efforts to prevent Teladoc
Teladoc or Teladoc from
Teladoc affiliated physicians from
ended in no
performing telephone consultations; indeed, the only inquiry ended On June 16,
no action. On
201 1, however, TMB’s
2011, TMB's general counsel unexpectedly sent Teladoc
Teladoc a letter threatening
disciplinary action against and legal action against Teladoc. See
its physician contractors and See Exhibit
and incorporate herein by
2 attached hereto and The letter asserted that
by reference for all purposes. The
Teladoc was
Teladoc was "in Board rules”
“in violation of Board rules" and was "jeopardizing
and was “jeopardizing [the] respective licenses" of its
licenses” of
physicians because TMB
“does not believe that physicians in Texas
because the TMB "does Texas can rely op
on [Teladoc's]
[Teladoc’s]
compliance with Texas
representations as to compliance Board rules."
Texas Board rules.”
9. The of this TMB
The basis of TMB letter was Board’s policy and
was the Board's Board rule
and opinion that Board
l90.8(l)(L) required a "face-to-face"
190.8(1)(1) of a patient before any physician could
“face-to-face” examination of could
dangerous drug or controlled substance. The
prescribe any dangerous quoted words
The quoted do not appear in the
words do
Rule. No the letter was
ofthe
No prior notice of was given to Teladoc.
10. Specifically, the TMB
TMB rejected Teladoc’s
Teladoc's plain language of Section
language interpretation of
l90.8(l)(L),
190.8(1 which requires that before prescribing medication, aa doctor must
)(L ), which must "establish[]
‘‘establish[] a
diagnosis through the use of
of acceptable medical practices such as patient history, mental status
and appropriate diagnostic and
examination, physical examination, and and laboratory testing." 22 TEX.
testing.” 22 TEX.
ADMIN. CODE §§ 190.8(1
ADMIN. CODE )(L)(i)(II).
l90.8(l)(L)(i)(II). Teladoc read the words
Teladoc “such as"
words "such as" to indicate that the
medical
medical practices listed are illustrative, being of which constituted "acceptable
of a type which “acceptable medical
meet the requisites of
practices,” but not required in their totality to meet
practices," ofthe
the rule.
4
11.
II. The TMB
The TMB asserted instead that every practice listed in Section 190.8(1 )(L)(i)(II)
190.8(l)(L)(i)(II)
after “such as"
"such as” is required to satisfY “acceptable medical practices" standard. The
satisfy the "acceptable TMB
The TMB
argued
argued that a "face-to-face" was required, therefore, in order to "establish
“face—to-face” physical examination was “establish a
relationship” under
physician/patient relationship" l90.8(l)(L).
under Section 190.8(1 TMB concluded, continuing
)(L). Thus, the TMB
Teladoc model
to follow the Teladoc “will lead to disciplinary action against the participating doctors in
model "will
the program," TMB
program,” as the TMB "will necessary” should Teladoc
“will take all legal steps as are necessary" Teladoc continue to
conform with Texas
advertise that its services conform Texas law.
12.
I2. Teladoc thereupon filed
Teladoc filed suit in the 353rd Judicial District Court of Travis County,
Court ofTravis
TMB’s interpretation of
Texas, seeking a declaration that the TMB's of Section I90.8(l)(L)
190.8(1)(L) is void for the
TMB’s failure to comply
TMB's APA notice and
comply with APA and comment and an injunction to
comment requirements and
TMB
from enforcing
prevent the TMB from new interpretation against Teladoc
enforcing its new Teladoc and
and similar telehealth
companies. The gravamen
companies. The of the complaint was
gravamen of new interpretation was
was that this new was so inconsistent
TMB’s historical interpretation and
with the TMB's and the text of
of Section 190.8(l)(L)
l90.8(l)(L) that it
it constituted a
new
new rule, which was invalid for want
which was want of comment.
of notice and comment.
13.
I3. The TMB opposed
The TMB opposed emergency
emergency injunctive relief on the grounds that its
interpretation was
was consistent with the text and I90.8(1 )(L), and
and prior interpretation of Section 190.8(l)(L), and
that Teladoc's was a premature
Teladoc’s action was TMB’s permissible exercise of
premature attack on the TMB's of its
On July I9,
adjudicative authority. On Hon. John
201], the Hon.
19, 201I, John Dietz granted a temporary restraining
order, barring the TMB from
TMB from enforcing the rule as contained in the June I6
16 letter. See Exhibit 3
and incorporate herein by
attached hereto and On August
by reference for all purposes. On August I10, 2011,
0, 20 II, the
TMB agreed to extend
TMB TRO during the pendency
extend the TRO of the case.
pendency of
14.
I4. months of
After several months moved for summary
of discovery, both parties moved On
summary judgment. On
March 4, 20
March 20l3, Amy Clark Meachum
Hon. Amy
I 3, the Hon. Meachum signed an order granting summary
summary judgment
judgment for
5
TMB. See
the TMB. See Exhibi and incorporate herein by
4 attached hereto and
Exhibit 4 The
by reference for all purposes. The
suspended enforcement
court also suspended of the judgment
enforcement of finding that the
pending appeal, however, finding
judgment pending
harm to Teladoc
harm Teladoc fro
from not suspending enforcement was greater than any potential harm
enforcement was harm that
would ca Jse
supersedeas would TMB or the public. See
se to the TMB and incorporate
See Exhibit 5 attached hereto and
herein by reference for all purposes. The TMB was
The TMB was thus prohibited from
from enforcing its
of Secti
interpretation of Section 190.8(l)(L)
n 190.8(1 and Teladoc
)(L) against Teladoc, and Teladoc has continued to operate as itit
has since 2005.
15. On De zember
On De of Appeals
Court of
ember 31, 2014, the Austin Court Appeals reversed the order granting
summary judgment
summary summary judgment
nd rendered summary
judgment a nd TMB’s pronouncements
judgment declaring that TMB's pronouncements
Rule 190.8 1l)(L)(i)(II)
regarding Rule “rule” under
2011 letter are a "rule"
)(L )(i)(II) contained in its June 2011 APA
under the APA
and, therefore, invali under section 2001.035
invalic under of that Act.
2001.035 of See Exhibit 6 attached hereto and
See and
by reference
incorporate herein by eference for all purposes.
No "Emergency"
No “Emergency”
16. On J aruary
On Ja TMB adopted
uary 16, 2015, the TMB amendment to the Rule
adopted an amendment Rule stating the
“purpose of
"purpose of the emer
emergency amendment is to protect the public health and
ency amendment and welfare by
by clarifying
face—to-face vi
that a face-to-face it or in-person evaluation
visit is required before a practitioner can issue a
prescription for drugs "” See and incorporate herein by
See Exhibit 7 attached hereto and by reference for all
Among ot
purposes. Among other amendment replaces "such
er things, the amendment “such as" “which includes
as” with "which
documenting and per rming.”
17. TMB
TMB lso announced amendment to the Rule
announced the amendment Rule will be
be presented at the
and 13
February 12 and meeting for consideration for publication and
oard meeting comment according to
and comment
the regular rulemaki~g
rulemakiiiig process. by
See Exhibit 8 attached hereto and incorporate herein by
Teladoc and other affected parties
purposes. This process, if followed, will give Teladoc
reference for all purpc)ses.
6
views and arguments
and physicians opportunity to submit data, views of
arguments before attempted adoption of
any rule proposed
any proposed by TMB (200
by TMB (2001.029).
1.029).
18. Given Teladoc's
Given of several years’
Teladoc’s history of Texas and
years' operations in Texas and the short time
from 16, 2015 to instigation of
from January 16,2015 of proper rule-making
rule-making procedure under APA, if done,
under the APA,
any of need
any claim or suggestion of need for protection of, imminent peril to, the public health and
ofi or imminent and
welfare by TMB is the essence of
by TMB by TMB.
of arbitrary and capricious action by TMB. In deposition given
December 6, 2011, the Executive Director of
on December
in the previous lawsuit on TMB stated that she
of TMB
“work[s] with the General Counsel's
"work[s] we go
Counsel’s office and we Rules and
go over the Rules we discuss those rules
and we
with the Board. We the — there's
We ensure that the- there’s not going to be
be a rule passed before it's
it’s published
with time for comment.
comment. ... as
The Board
.. " The
. nowihas
Board now APA twice by
·has violated the APA by promulgating
comment and
“rules" without allowing affected persons opportunity for comment
"rules" complying with
and without complying
APA.
the APA.
BRIEF IN
BRIEF SUPPORT
IN SUPPORT
Imminent
Imminent Peril
19. The APA §§ 2001.0034(a)(l)-(2),
The APA (b) and
2001.0034(a)(IH2), (b) and (d) an agency to set forth the
(d) requires an
emergency rule:
following to adopt an emergency
((1)
1) the rule adopted;
(2) written reasons for the rule's and
rule’s adoption; and
(3)
(3) written reasons for the agency's findings that
agency’s findings
imminent peril to the public health, safety, or welfare exists
(a) an imminent
20. Judge McCown defined imminent
Judge Scott McCown imminent peril as follows:
The words
The words suggest aa soon-to-be-upon-us public disaster not merely a serious
policy concern ... Imminent
. . . means soon but not yet. If a problem
Imminent means problem is here, it
it is not
imminent, but present. A A present problem how
imminent peril, regardless how
problem is not an imminent
serious. The want an agency to address present problems
The legislature does not want problems with
7
emergency rules ... long standing problems ... can
emergency . . . . . . imminent peril ...
can not be classed as imminent . . .
as a corollary, an
an agency can not allow a distant problem become an imminent
problem to become imminent peril by
by
promulgate an emergency
inaction and then promulgate whether an agency
emergency rule. . . the test is whether
. .
reasonably could andand should have problem in time to address itit by
have foreseen the problem by full
filll
2
procedure.2
procedure.
TMB’s grported
TMB's “emergency” is a slap at the Legislature and
purported "emergency" and the Public
Public
21. Notice, transparency, public participation, and must precede
and reasoned justification must
of agency
assertions of of rules. As
by adoption of
agency authority by of Appeals
As the Austin Court of Appeals stated in its
“We must
opinion, "We intended.”
must give effect to these important safeguards, as the Legislature has intended."
22. The timeline for the "emergency"
The “emergency” looks like this. 1) Teladoc begins operating in
I) Teladoc
Texas in 2005; 2) the TMB
Texas 2006 but dismisses the
Teladoc physician in 2006
TMB investigates a Teladoc
investigation; 3) the TMB of June
TMB sends a letter of June 16, 2011
201 1 to Teladoc Teladoc and
Teladoc threatening Teladoc and its
physicians; and
and finally, Teladoc began
afier Teladoc
finally, almost ten years after began doing business in Texas
Texas and sixteen
days afier Court of
after losing at the Court TMB declares an emergency.
of Appeals, the TMB no
There is no
There
imminent peril.
imminent There no emergency.
There is no There is only a state agency
There agency ignoring its legal
limitations in a blatant attempt to get its way.
The harm
The Teladoc
harm to Teladoc
23. The "emergency
The “emergency rule" on Teladoc's
rule” will have an immediate and severe impact on Teladoc’s
do business in Texas. Teladoc's
ability to do Teladoc’s physicians cannot conduct telephonic consultations or
by doing so without first conducting a face-to-face
prescribe medications if they believe that by
examination and
physical examination and the other practices listed in the Rule, they will be subjected to
by the TMB.
disciplinary action by TMB.
OF ACTION
CAUSE OF
CAUSE ACTION
Request for declaration of rights
Request under the Rule
ri2hts under Rule
22
McCown, Opinion
F. Scott McCown, on Temporary
Opinion on injunction, I Tex. Admin.
Temporary Injunction, 1 I6, 27-30
Admin, L.J. 16, 27-30 (1992)
(1992)
8
24. Teladoc TMB’s emergency
Court declare that the TMB's
Teladoc requests that the Court emergency rule is invalid
two reasons. First, there is no
for two imminent peril to public health, safety or welfare and
no imminent TMB has
and TMB
made no
made no such
such finding.
finding. Second, TMB did not endeavor
Second, TMB endeavor to state in writing reasons to support aa
finding of
finding of the requirements of APA §§ 2001.034(a)(l)-(2),
of APA 200l.034(a)(1)-(2), (b), and imminent peril to the public
and imminent
one had
health, safety or welfare if one had been made. See Methodist Hospitals of
been made. of Dallas v. Texas
Industrial Accident Board, 978 S.W.2d
978 S. App. -Austin,
651 (Tex. App.
W.2d 651 no writ).
—Austin, 1990, no
TRO
Application for TRO
Application
25. Teladoc enforcement of
Court to temporarily enjoin enforcement
Teladoc asks the Court “emergency
of the "emergency
rule" by TMB
adopted by
rule” adopted TMB pending on the merits. Teladoc
pending a trial on Teladoc has a probable right to the relief it
seeks because no imminent
because no imminent peril to public health, safety or welfare exists as evidenced
evidenced by
by
Teladoc’s
Teladoc's operations in Texas TMB
and TMB did not follow the requirements of
Texas for nine years, and APA
of APA
2001 .034(a)(l)-(2), (b), and
§§ 2001.034(a)(l)-(2), Harm to Teladoc
and (d). Harm Teladoc is imminent
imminent because TMB issued notice of
because TMB of
emergency rule on
the emergency The "emergency
on January 16, 2015. The “emergency rule" have an immediate
rule” will have and
immediate and
impact on
severe impact on Teladoc's do business in Texas. Teladoc's
Teladoc’s ability to do Teladoc’s physicians cannot conduct
cannot conduct
telephonic consultations if they believe that by doing so without conducting
by doing conducting prior face-to-face
face—to-face
examination they will be
physical examination TMB. Unless
by the TMB.
be subjected to disciplinary action by TMB
Unless TMB is
from taking or threatening to take disciplinary action against Teladoc
immediately stopped from
immediately Teladoc
physicians based on TMB’s "emergency
on TMB's “emergency rule," withdraw from
Teladoc physicians will likely withdraw
rule,” Teladoc from the
Teladoc PA. Ifthe
Teladoc PA. Teladoc physicians withdraw, Teladoc
If the Teladoc and
Teladoc will be unable to serve its clients and
of dollars in revenue. Teladoc
lose millions of Teladoc has no remedy at law
no adequate remedy law because it cannot
it cannot
recoup the loss of
recoup TMB endeavor
and patients, should TMB
of doctors and endeavor to enforce its second
second illegal rule,
as it done before with the rule invalidated by
it has done by the Austin Court of Appeals.
Court of
9
Reguest for permanent
Request permanent injunction
injunction
26. Teladoc asks the Court
Teladoc permanent injunction after trial.
Court for a permanent
PRAYER
PRAYER
W1-IEREFORE, premises
WHEREFORE, Teladoc asks the Court to declare invalid the
premises considered, Teladoc
emergency rule adopted by
emergency TMB and
by TMB pending a trial on
and to temporarily enjoin its enforcement, pending on
and upon
the merits, and upon trial on permanent injunction enjoining enforcement of the
on the merits, a permanent
emergency rule. Teladoc
emergency of suit and
Teladoc asks for costs of law or in equity, to which
and all other relief, at law which
Teladoc may be
Teladoc may be entitled.
Respectfully submitted,
WALKER L.L.P.
JACKSON WALKER
JACKSON
By: /s/ Matt
Is/ Dow
Matt Dow
Dow
Matt Dow
Matt
State Bar No. 06066500
Bar No. 06066500
Dudley D.
Dudley McCalla
D. McCalla
Bar No.
State Bar 13354000
No. 13354000
1100
100 Congress, Suite 1100
Austin, TX 78701
TX 78701
(512)236-2000
(512) 236-2000
Fax
236-2002 - Fax
(512) 236-2002-
ATTORNEYS FOR
ATTORNEYS FOR PLAINTIFF
PLAINTIFF
10
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
This is to certify that on of January, 2015, a true and
on this 20th day of of the
copy of
and correct copy
was served via email and
document was
foregoing document on the parties listed below:
and fax on
Ted Ross
Ted Ross
Office of of Texas
of the Attorney General ofTexas
Box 12548
P.O. Box 12548
Texas 78711-2548
Austin, Texas 78711-2548
512-474-1062
Fax: 512-474-1062
/s/ Matt Dow
Is/ Matt Dow
Dow
Matt Dow
Matt
11
l20l7815v.l
12017815v.l
1/20/201512:07:05
1/20/2015 PM
12:07:05 PM
Velva L. Price
Velva
Clerk
District Clerk
County
Travis County
Travis
D-1-GN-15-000238
VERIFICATION
VERIFICATION D-1-GN-15-000238
Nam)
AJ ‘go/LIL
e'-'.J Lj o(l)L
STATE OF G6N'N'ECTI'CUT
mm ldOIUL.
STATE OF OONNECIICtn §§
,vew 304/; §§
COUNTY OF
COUNTY OF FAIRFIELD- §§
BEFORE ME,
BEFORE ME, the undersigned Notary Public, on
on this day personally appeared Jason
Gorevic, who me duly sworn
by me
who being by sworn on
on his oath deposed and
and said that he is the President and
numbered cause; that
Chief Executive Officer of Teladoc, Inc., Plaintiff in the above entitled and numbered
he and foregoing Verified
above and
he has read the above Verified Original Petition for Declaratory Judgment
Judgment and
V A;
and 20
Application for Injunctive Relief; and that the statements contained in paragraphs 5-15 and 20
are within his personal knowledge and true and correc
knowledge
4.44/«I
W1 Gore/c
SUBSCRIBED AND SWORN
SUBSCRIBED AND SWORN TO BEFORE MB,
TO BEFORE on this the ~0
ME, on :20 day
day of January, 2015,
to certify which my hand
which witness my hand and
and official seal.
1;: C
Notary S ee of
Public, S
Notary Public, of New ~o~<...
NV 0 L
My Commission
My Commission Expires: -s=f~t t
»o...,p.§L‘»§,‘é.’¥."'.?«"u..v.«;
No. 4704776
nunlmod In Co!-M‘!
I 5-
------------------··------------- ' ,. ··-·- -·· -·-
l044685 l v.1
1044685Iv.l
Exhibit 1
Exhibit
Lette from Texas
Lette from Texas Board
Board of Examiners against
Medical Examiners
of Medical against Dr.
Dr.
Kram r February
Kram February 14, 2006
14, 2006
Texas Medical
Texas Board
Medical Board
\1.; w:~ v,-....
\.i:t~ i• !'|~u m,:.::.
{t (P\ ~.()l ~ •. .«.~«.‘._:. (‘4.\.,'n|'.•.
·''-''lo<'•, j 1 .;·•,,-.,;HI
n
n "(M])yl':\.‘u.|4
t<<-i~l:t )11\,Ct•H
7-‘emu.-uy I-4, 2065
ROBERT IVAN
ROBERT KRAMER, MD
IVAN KRAMER,I.iD
HOLLAND UII 99
3702 HOLLAND
3702
DALLAS, TX 75219
DALLAS‘ TX 75219
H;--
Ftc· Fm; ttn 0541197
F1!c lnlensa mfar
OG·l097 (pfensa In mks
mic! lo numnm
lhiti numt>nr m lulutc
m Imum corrcspontJcmco)
collr.-spanllencv)
KRAMER:
Doclor KRAMER:
Dear Doctor
The ~oxu5
The mdzcax Bo.od
Texas Modicnl Bcad(TM5)h:.sm>Ii.1(r:a
tTMS) hns tn1tiatca n Kenna’ invor)!t!)t!t!on
s tormn! in\'a1;Hg.':lIun cl nndlcr yoJt
you nrHJ/Ot
of you vnatficnl
your mdcfJcnl
pmcflco. The oonnrnl
pmcncu. Tho general statutory ullngahan \s‘
sleuulcry allognlion •s:
1~1.052{u){6) AN ADVERTISING
USES AN
l6J.D52(n)(G) USES THAT IS FALSE.
STATEMENT THAT
ADVERTISING STATEMENT FALSE. MISLEADING OR DECEPTIVE
MISLEAUING OR DECEPTI‘/E
‘
1&1.051(u)(3) cov.u.urs A
16-\.05I[u)(3) COMMITS A RULE vzomaou
RULE VIOLATION
nnrl mnm ssaccrlrcany
nnri mora occihcally aclmnr. la:
rc-!nlcfi to:
The TalcDoc.
TtuJ Tz:|L-Do: Wobsita au rolntos
com) ns
(www.tclade<:.com)
Vh’cbs1|L=(w‘.wI.xc!:IdDc Inicn‘ misloudt~19
1:.-talus to lolac. ndvarlzsmg. toHuro
nuisleadvng ndvfJttis1ng, Ia osmbhsn
lauum to O$tnbtish parlour
pa!iont·
pl1y$'cinn IOia!lonship as
pI\y:‘ch)nIulm1on5h1D pm Boord
os per Board rulo 190.6(
19(l.fl(I](L). and mu
1)(L). nr~cJ lho comoralc pmcuza of
co1por;;tc pmctlca at momcine.
mod>cino.
commmo lhO
Mensa CO<'n;>IOIO
PIOa$0 mu onclosod
onclrmul Mcd~enl Prncticc Questionnaire
r.1cducnIPunr.mc O~ostionnctilo (MPO) mlum itII on
and lohnn
(MPO) oM on Of
as lxulom
boloro
nm prcvmusly ma citeumtttmcas
cucumomnces,
ma
(N106. If
3Mi00. have not
you hnvo
I! you pro-Adan 2:
prC'i>ousty provided uolacmd narmt!ve
n dotaltad explaining tho
nnrrnhvc explaining
muunr. you
Ilus mollol,
suzroumixng this
su:round<ng you oro encuumgau to
are oncowagod do 50
re do cxllhis1umo.FIuMo
so of knaw thnl
this limo. P!oaso know lhal TMB
Is HIPPA oxompt.
I3 HIPPA oxvrfibk.
manor is
Although this m;!Uor
A1lnaugn|ni5 is assigned
nssigncd ro nn invostigotor
to nn who is
mvosrignlnr wllo Is not tho t\ustin
no! in tho /\u5l:n ofhco, cmcclna
unhzss diroctod
olhca, unfuss
to do o1hcrwiso~ plaasu for~wnd
mhorwiso. p!anso Inm.-mt nu couespanucnco to m.1i!mc\nMC~262 nl Ihr: ubova address.
zlbovn nddrcss.
la do nH couc$pondonco lo mnil drpp MC·262 nllha
Fr:or mlmmullon mgnrding
or mforrnutlon wgrnding tt1e process. ploaso
colnpininl process,
l|\o cornplninl via-150 visit our wubsmo
wsiv our wobs1to nl rA‘NI.ImD.slnla.xx.u3
al w\'IW.tmb.stnto.tx.us
sincnlcl-/.
Sincerely,
~
MunR0bIn\2.0r\,J,D,,M‘I'1.ry:l
1.1an f1ob•n,on. J.D .. l.lanag<,r
~
~
cnn.prn.m:-. ma
Cornplnlnt~; nnd Lnvrzshgnlnnns
lnvn5Hgni!Of\O
KELLY PI\T“»()N. A:'»4gnI‘(A In‘/(':7|vg:)Ir17 (5 I21 25~3«73GI
' A
A
EXHIBIT
EXHIBIT
t.......
el ~1Doc«>
4“ W”0
M H “W
“H'‘' -~ and Confidential
Proprietary and Confidentlal
T 11022
from Dr.
Letter from
Letter Kramer to
Dr. Kramer to the Texas Board
the Texas Board of Medical
Medical
Examiners in response
Examiners response to May 29,
allegations May
to allegations 2006
29, 2006
Muylv.flMm
VIA Uvur. gill! Dclimry & llnzsnnilc
~Is. 1vl.m
Nix‘. RohirNJO, J.D.
.'\1.II‘lRUl7lllH'()n,}.D
Tcxm State
Tc.xas Sulc Bo:1rd
Board ,;fof Medkai Exarn;rt"""
;’\«Ic<llI:.n l-'>.mxm\<~,rs
|’.(). Mex
P.O. Hox 2018, Dmp lviC-262
Mull Drnp
20 I B. 1\lad M('-262
Austin.
/\usl|IL TXTX 7X76:0:·
7&7(AI\‘—'lU!S
20! S
Rc. l'il<: I82 {Ruben
ll 182
I'lIl: il Knnucr)
(Robert Ivan Kr:rru~n
Dear
D~ar ‘Via. ROluII\‘0n:
1\h. Robinson:
I am
am in rrc~ccipt
I ~~~ orynur lcllcr Llzucd .lunu.1ry 25. 2()f)(> Informing nu; 0| n cumplzunl
‘pl 0f ynur leiter dated January 25, 2006 informing me ol a n>mplamt
h.:\ b~en
Ilml has
that ini ~ ||C|.| ullcglng violations
been initiated \CCIiuM lo'l.li)Z(uJ(liJ.
nf sections
\'ix>I;uinus<:( nnd
I6-I135 IIu)(.”4), nnd
lfixI.IIS2(n)(6I, 16-1.051(a)(3).
16-1
I0-l 052ruJ( J 7) of
D5'llu)(l7) 'l'cxns Occuputions
of' the Texas OccupuIIon.~: (.‘nLlc::|1dBn.1nlRulc
Cotk und Board Rule 190.8( I )ti.J. Ilhht·rehy
l90.8(|)L|.). -clay
deny the
deny Ihc allcgatmns.
Llllcgnulmns. burhul um
am hopeful
IIupL-fill that my response
Iluu my rcepnlxsc will mid yuur c·orwcnu
res-; your
;\<ldn:-< clalwccrxlx and that
~
no (urlhe.r
rro union will In:
fmllucr auiun be m-.cI:,<.~;:ry
nccc"ary by Ivy you m ynur offic~.
In’ your uxlice.
mm
TduDnc
may begin
I ;,.hn!l
1 lwcgjn by
wclmlc ("the
Ti:luDoc wehsiw
Sc icc~. Inc. ¢|/I7/:1/Tc|;zDUC
Services.
~H.ldre:.;\;ing ynurL‘m)cu:I1\s
l!_y u:lr.ln:»'-ting
(“Ihc Wclmw-"I.
Wchslte .. l. The
d/hla/ Tc.li!Doc Medic«!
TIN: Weh>ilc
Services C'CMS'').
Mediuurl Scrvic<!'s
-.Img. my
your t't.1nct.~fll!-\ rt~ganJinr
Wchsnc is~ ~uwncLiiII1<l
own~d and opcratctl
("(‘M$ ). CMS ~
anmm-um-nu wtth !he
my invo!vemt·nt
I
on
(‘MS ,toe,;
III
hy C'yhcr
all hy
pmcl c
~~
not pr;l<'tice
me
Cylicr Medical
Mcllicul
\‘
~
mc-drc:inc.. (TMS
mcduunc. ClvlS udmuusl
~
admmistcrs -\ a paricnl rlumlxusc and
u pulicnl dawhasc nml rdcrs |3.IIi\: [culls
rclcrs patient c;dl> toID physicians
physician,:
mnpluycll by
employed hy a physic·iuns·
physicians’ "·""''iatinn
il nunuul TdaDt>c·,
nciauiun oamcdav I’ A. ("The
‘x:l:|l)m-. P.t\.
’
PA"). !Vly
‘Iv: PA''). My role nn th~
rule nn lhr:
lmurd or
llnard ltvircunrs 0
cl‘ Dirccwrs ol' CMS
Cl\1S i,.1o ~..n llulson
serve a•;
In ~;cr\*c 1 liui~on bcl-.\-ccn
. between CMS C ~~ ur1d The PA
um! The in order In
f'A ·,n
. t<1
vmulc Ih.u
ensure 'l’cluDuc
Ihal Tela ml-mbcrs receive
Doc membcn; [cue old stand.rrd"
•·g.olcl <I2Iml.Iul“ cnrecalw from The The f'A xlucmn.
's doctors.
F‘/\‘,«
My history
My hismry as us:n~ plly.sh:ian zlcumnxlrulu my
vlvyslnmx will dcm<1nstrutc
~
my l.‘l)|lIlIllllDl.‘|ll
commitment to lu pmimrl cave,
pmi<•nl Cllrc.
Almclscd us "Exhibit 1" cnpy ofufmy cum-nl resume. Thmugh hard lmnl work and 11n
'
Attached"' “lixlnbll 1 .. is au .:opy my Cltrrcnt rcsurnc. Thrmrgh work and
belie!' in my
umncmlous hcliI:I'm huvc dcvclorcd nzlximnl
~
ucmcnclous rule as a
my role u phyuiuian.
physician, I h;l\'c
in (lC\lCl(7|‘IL§ll a
I u very ,;oJicl,
solid. n•ttional
rL‘pul1EllI)I\ in um
repuwtion the rncdkal have chosen
field. I h:tve
nucdicul 11cld. chosen In to work
wcnk on
I an the TclnDm:
lhc Tela r:onccpI luau
Doc con.:cpt hceau-;cno II
hclicvc in it» it~ a nu of
mi;;sion nf reducing
rt•dudtlg hcalth um . ern
unre c:o;;t,;,
hcullh . care ulnpowcringlluc
powering Ihe patientpaticnl In to make
make
ccrtuin
Ctlflulll health-related decisions. and incrcnswg ace'!"'
l|C3lll]l-ILI‘-\lC(]dC“Vl0lIS.1lllLlll‘lCl't?ll$lllgI|L|.
~ ~
lop-qII:Ilil_y health
«a to top-quality ll’) cam. flllul
hcnllh care. nut
drtf not
clmn.-zcInbcp;Ir1urIl|c'I‘eluDoc
dton,;c ::<>n<-cpl for
Ill be pan or HH! Tela Doc r.:oncc,pl |'nr J'inrmci:tl
I'innuci.1l rcn-;ons.
urlwn.-.. t\,;Asl1 liuv''·
Inuvc. done
done
Ilmmglluul my nearly 50 years
thmutrltoutmy yean; in the mcdkal prrvfcsslon. I Imvc
medical rrofcss10n. have chosen
chPscn to znlvnmm: au
In utlvnGrlc.
I
pnrnculur nwdci
p:uticular uf paticnl
m<:clL~l of cine bcc;msc
[lmicnl care believe that
l\cc:m.<c II hchcvc good for
is good
(I i~ fnr patkms.
~
Ihznl 11 p;.lli::xIh.
~~ clubilily and
afTord.,bility
.1
avarlablc
:1 .
~
and re
~ uhlc II)inth<'
Inc nmrkct.
mc1nIlu:'l‘cl.ll)nc
ur!Jactcd rn~
\Vl\ulIll1luC
What
market. The
-
ready ace'~''
I
cu;-.1, In
umu'cp1nl'nn-cull
to the Tela Due cow:cpt
mm "ml physid:rns
lo qualified plly.
T<,'luDuc *-.:‘I‘\‘icc.
T111: TdaDoc ><"rvice is
M Ilull ~
of' on-call pullclll
tlwt othcrwr!>C
in dcsi~ned
cam w;t.,
patient care
ulllI:r\Vl.‘iC1|r¢
rumlm-. patient
fur rntnine
nlcsignccl for
lhc
\HI.\ the
arc nut
not wntlcly
widdy
whcru
culls whNc
pzllicm calls
pulucxn is
the patirnt
1h;: is cill1€I'a\vu)' frnm !he
~!fh,~r away frorn pmnury care
Illc primury cure plty:-.icinn ur is
phy.~|cinn or unable tn
is un;thle m accC'-'!o\ the
lllc zIL‘I.‘L's‘.s'
l'ugt•
l'u);o at 2
I nf2
I
EXHIBIT
EXHIBIT
,4
._Q ,;£......
’
12010
nu Doc-3
5 12010
Tela
In xvnwx H
\( Proprietary and
and Confidential
T 0023
T (I025
hm ~
prnn;,ryy c·.~re
tuxrc ph_mct:m
phj"C"'" bu!hul xllll I‘t:qutrcS lllllncdi.lll!
,flll requm:s il\C'tlic:al ;!I
IH\ll‘::.'(|l.llI:lH\.'Lll<J1Il Tulaunc ''
tent ion. TdaiJ,K·
alllclllitm. ts n'''
llul
tlcstgvtml tn rL~phH:e
dL'-tgn<:tlw rcphttrc a prim.uy
.t [\lill1.ll CH!\.';. ~ n and
ph;~dl'I<Hl
curv ph)».1'..' doc‘ not
;nul doe:~ um p!!qwll
putpust !o lu d.:,,
tlu !',!i.
5...
Yum '
indicate-d a t:on(t:rn r~g.1nfing rile
ttcrtmllt';ttt:.l:1.:tuttcrttrcgatrtlingrltc
Your ieucr
"
a!lcgcd e-1\lnbiL;II p~Hknf
"l'.n'hm- tn I,'\llI|)I§>'h
allcgctl "failure ~
ism-..
pltystx.i:t/: relationship"~
phy.skiaa rl: :l'mn~:hi{
~ ts pvt rul~ l‘)(LS(
Bmtttl (MIC
per Gourd llJ0.8( I )(LJ
)(Lt .. The
l Thu Tclttllnt:
TclaD<>C ttmtlul
mndd involves
in\-uh-(:2
um: ISus pm
~
deli\ cry ul pttticnt
(l(!ll‘.<.'l“,‘ p:Hknt care::.trc \"ia lclcphunt: utatltcttl
\'l«l telephone medical ctxttsttlts.
consults. Tckphnnic
1clx:pl1rttttL' care pa11 ofat’
tmtlttttmul tmdtc
tradnional Jn~tllvinc.1c. TheThe Amcricau
Atttcrmut Colkgc.("allege 11fuf Pbysic~;ms
P11)» tns has writ len c'<tcmivdy on zlm
WL'lllCll\1\u:ll\L!\Clyl)ll the
llCllI.‘flI$ or
hcnc•firs pztltctm ,.;,,
acces.sing pali<'llti.
nl';xr:v:t'ss'tt\g \liI tulcplmttc.
tdcphonc. I have hut ;J\Iachcd
I .t‘.l:t<:hcd 1wo txrliclv ~l'mm
lwu articks Hum 1hc Iht: ACP.
«\(‘P.
l't'rmt IWR and the allies‘ frmu 2001.
~
~
“l' hthit 2"
They an:
~~
ulll'
'"'" from l'l'lx nnd !hf other from "00 I. They zuc tntlutlctl
indudcd in "E.\hihit 2" 10
to thi'
this lctt<:r.
letter.
Ju;:t as
JI|.\'l us those
those :trllclcs .ttlvi,w. The
ttclc,-« .1dvisc. The PA PA [l\I)'€lCl(lIl.\
physicians who whu treat (‘MS nwmhctx huvc"
CMS nwmbcrs htnc .~
PA tlucttm much Iin1e
~
~ tnplctc pallcllf
\.'nrnpkl~ pullulll hlxhlry m lruul
lIl.‘\IUr_\‘ lll front of or them.
lhcflh PA ztlett xpcml
do~Ior.'l alsn ~pend us w~ much time as j,
zts is
ncvcsmry to
nc\.·t:ssary arrive af
lu arrive all an
ttn act.:uralC cvaJualion ttntl
tlLL'lll'flll! C\‘llllJJ|lll!|I ltl ~1ddrcss
and ll) qttt: ~ inns rrom
.'|dtlrc.~‘ questions lrmn ptllicnt!'t.
pulicn ‘H:
This
~
I.\
i<
is tlec
t/lc typt• ul'c:m
lypc of tl-mars p!OVIU~
thai thKiors
Cntt llhtlpttwtdc all lhc lttnc
ail the tn l'ft·~ltJI
lllllC til |'l|- and l'I11SS-Clii'C'HI;,!C
and ~
I.'f‘l‘I$.‘~-l.‘U\'£‘l-|"C
~
I
~
silunlintts. Only
>ilwuions. Only Ill" ttmc, the donor
this~ tintc, '
tlnctur is pruvitlcd
pr,lvidcd with much mud: more
nmtt: tnl'urtn:tlttttt
mfornmlion by hy w\tich
ulticlt
ll) wnhc
to an nppmpnzttc
mr~ke un nppnJpri4ih.~ diagnosis.
tllttgnn
Murt:n\'t:r. Tcl:tDtvc model
Morcov~:r. Tcla])()c's tuotlcl dm•s um usc
cltws not
.‘
~
inlcrncl or
Inst: in1ancr on tclcpltom:
tclcpflt)ne qul.'stinnnaircs
qttcxttinunttircs in
otdct to
order tt: cv;duatc pnltcnt condition,;.
t:v;tI|ldl¢ p;tliclll In other
cottrlitlon.» ln ulllcr words,
wttrtls. PA P/\ d<1tlors
tlnclurs arc practicing
are not prucricing
inrctm-.t
intentct medicine.
trtctliulttu. Tltt• Ullly rule that Ime
'l'ht- only n>lc internet plztys
he itttcrnct plays is to In help CMS memhcrs
ltclp CMS tttcrnhcrs enroll in
ll|L' scrvtcc
tlte and provide
scrvJcc and pmvitlc mcdicallll>torics
nmdlct-l hmtnrics forlur the L')\L‘lU.\IVl.‘ H50
thu t:xdu,ivc usc and viewing of PA
01' PA
doctor~.
d(!L‘l0r\‘.
now like ro mes concerning
cunccrning the wclmilc at
‘
I wnuld
wnttltl now :ldlJl'c.\‘:a any
ll: address ttny i.ssucs lhc Tcl;tOoc
'l'ul.tDo<' website
~
l ~ ztl
Ilmn My
~
_\~\VI'£,1Y.!!!l.!<X'.tt®.
tc|ztt_lg,;ctun. nul itwulvutl
am not involved with the d~,ign wnt-ding nfthc
m wnrding
t’Jx:\igl10( ,,,. the Website.
Wch.~;i(c. !\'ly
lncu at make sun: that the pmpr ml‘r structure exist'
‘
fm:us
~ ul Tela Doc ts
ll5l.'t[lL1L' to make
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Letter from
Letter Board of
Texas Board of Medical Examiners dismissing
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case against
case against Dr. Kramer June
Dr. Kramer June 8,2006
8,2006
TEXAS tviEDICAL BOARD
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ROBERT !V.‘~N
ROBERT KRAMEH. MD
iV,\N Kf1AMEH. MD
3702 IHOLLAIJD
3702 iOl LAI>JD
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DALLAS T:<
DALLAS TX 75219
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Exhibit 2
Exhibit
~
Texas Medical
Texas Board
Medical Board
MAILING ADDRESS:
MAILING Po. BOX
ADDRESS: P.O. Box 2018 •- AUSTIN TX 78768-2018
AUSTIN TX 78763-20I8
PHONE: (512)
PHONE: (512)305-7010
305-7010
June 16,2011
LONE STAR
VIA LONE
VIA OVERNIGHT DELIVERY
STAR OVERNIGHT DELIVERY
Mr. Paul Squire, Esq.
Mr.
General Counsel
Teledoc
Teledoc
1100,Spring 600
00 .Spring Valley, Ste 600
Texas 75244
Dallas, Texas 75244
Dear Mr. Squire:
Dear
Several recent representations by Teledoc regarding its internet program
by Teledoc program have come to the
have come
attention of the Texas Board ("Board").
Texas Medical Board (“Board”). These representations cause concern on the
of the Board
part of Board for its licensed Texas who choose to participate in the
Texas physicians. Physicians who
program you
internet program you advertise should be able to expect that your company has taken all steps
company
necessary to ensure that the service or product offered by
by you Texas meets all Texas legal
you in Texas
standards and requirements. Further, physicians should be able to have assurances fromfrom your
company that they will not bejeopardizing
company be jeopardizing their respective licenses should they choose to
participate. The Board does not believe that physicians in Texas
The Board Texas can rely on
on your representations
as to compliance with Texas Board rules should they opt to participate in your program.
Texas Board
As you may
As may recall, the Board, after extensive public input and numerous
numerous stakeholder meetings,
of which
several of Teledoc participated in, adopted
which Teledoc adopted new As you
new telemedicine rules last year. As you will
also recall, of
of all the stakeholders, only Teledoc and Optimum opposed
and Optimum opposed the final
final rules as adopted,
were not
“face-to—face” examinations were
maintaining throughout the rulemaking process that "face-to-face"
Board Rule 190.8(1)(1)
necessary to establish a physician/patient relationship. Board 190.8(1)(L) provides:
of any
Prescription of any dangerous drug or controlled substance without first establishing a proper
professional relationship with the patient.
(i)
(i) A proper relationship, at a minimum
A minimum requires:
(I)
(I) Establishing that the who the
person requesting the medication is in fact who
person claims to be;
(H)
(II) Establishing a diagnosis through the use of acceptable medical practices
such a patient history, mental status examination, physician examination,
and laboratory testing. An
and An online or telephone evaluation by
by questionnaire
is inadequate;
The Board both initially and
The Board and throughout the process specifically
specifically rejected the position that a
“face— to-
"face- was not required to establish a physician/patient relationship and
face” examination was
to— face" and
Board rules to allow for situations in which
crafted the Board “face-to-face”
which that required "face-to-face" examination
Mr. Paul Squire, Esq.
Mr.
2011
June 16, 2011
June
Page No.2
Page No. 2
could be accomplished through
be accomplished through the use of the internet. Further refinements
use of were provided for
refinements were
was established. However,
after that initial physician patient relationship was However, the fundamental
language of Board Rule 190.8(1)(L)
Board Rule was never changed.
l90.8(1)(L) was
Teledoc’s advertising material has multiple statements indicating that its process can
Teledoc's can be
be
conducted over the telephone without any
conducted any prior establishment ofof a physician/patient relationship
Such statements include:
“face-to-face” examination. Such
via a "face-to-face"
•0 “Teledoe ....
"Teledoc ....provides Aetna’s Texas
provides Aetna's members access to Texas
Texas insured members Texas licensed
physicians who treat minor
physicians who minor non-emergent
non-emergent medical remote telephone
medical conditions via remote telephone
when the member's
consultations when
consultations member’s primary
primary care physician is not
not available."
available.”
•0 "Specialize and diagnosing
with patients and
“Specialize in talking with diagnosing problems
problems over phone.”
over the phone."
•0 “In compliance
"In Texas Medical
with the Texas
compliance with Board’s rules, do
Medical Board's do not with
not consult with
algorithm or
individuals via email, algorithm nor are consultations based
or online chat, nor on
based solely on
an online or
an telephone consult questionnaire."
or telephone The Board
questionnaire.” The Board notes that the only thing the
be looking at is the patient's
physician will be medical records maintained by
patient’s medical There
by Aetna. There
will be no "face-to-face"
be no “face-to—face" examination
examination by Teledoe physician.
by the Teledoc
•I “You should
"You should be aware that Teledoc
be aware was actively involved
Teledoe was comments to such
involved in the comments such
Rules." The Board
Rules.” The Board notes that as Teledoc Board
Teledoe described its practices before the Board
members sitting on
members on the rulemaking was told it was
Teledoe was
rulemaking committee, Teledoc was then violating
Board
Board rules and would continue to be
and if it continued in that vein it would Board
be in violation of Board
rules.
•- “Moreover, the
"Moreover, Texas Medical
the Texas Medical Board, when adopting
Board, when Telemedicine Rules
adopting the Telemedicine Rules last
phone consults from
year, intentionally deleted phone from the definition of "telemedicine
“telemedicinc
medical were finally
before the rules were
services” before
medical services" finally adopted August 2010. You
adopted in August You should
should
note Teledoe does
note that Teledoc not provide
does not provide video consultations herehere in Texas would
Texas that would
meet the
meet definition of telemedicine medical
the definition medical services under TMB’s rules. Finally,
under the TMB's
which Teledoc
the access which Teledoe provides members complies with
Aenta’s members
provides to Aenta's TMB’s
with the TMB's
guidance ensuring
prior guidance ensuring that the met in Teledoc's
standard of care is met
the standard Teledoc’s physicians'
physicians’
consultations." ·‘Teledoe
consultations.” phone consults were
Teledoc does correctly note that phone were deleted from
from the
were directly in opposition to the position of the
adopted because such consults were
rule as adopted
Board that "face-to-face"
Board manner in which
were the only appropriate manner
“face-to~face” consults were which to establish
a physician/patient
physician/patient relationship. Such was not the result of
Such deletion was Boards decision
of the Board's
that telephone consultations would The Board
would be appropriate. The Board notes that Teledoc was in
Teledoc was
violation of Board’s rules then and is in violation of
of the Board's of the rules now,
now, in that its program
program
does not provide
does be established with
provide for a prior physician/patient relationship to be with the
“face- to-face"
"face- to-face” examination aspect.
Locm. ADDRESS:
LOCAL Aooness: 333
333 GUADALUPE, Town 3, SUITE
GUADALUPE, TOWER some 610 TX 7870
Austin TX
•- AUSTIN 78701I
WEB: www.tsbme.state.tx.us
WEB:
Mr. Paul Squire, Esq.
Mr.
June 16, 2011
2011
Page No.
Page No.33
•- “. ... diagnose
"·. . . non-emergency medical
diagnose routine, non-emergency recommend treatment,
medical problems, recommend
and can
and even call in a prescription to your pharmacy
can even when necessary:"
pharmacy of choice, when necessary:”
These few of
These statements are but a few made by
the statements made
ofthe by licensed
by Teledoc, that if followed by
Texas physicians, will lead to disciplinary action against the participating doctors in the program.
Texas
Such knowing and
Such knowing and deliberate misrepresentation is unconscionable given the active participation
of Teledoc
ofTeledoc in the and rulemaking
discussions and procedures leading up
rulemaking procedures adoption of the
up to the adoption
Board Rule
telemedicine rules in Board Teledoc has been
174 this last year. Teledoc
Rule 174 Board members,
by Board
been told by members,
and myself, as General Counsel, that the structure proposed
the Executive Director and proposed by
by Teledoc is
Board’s rules and
contrary to the Board's and that opinion has not changed
changed due Board Rule
due to the adoption of Board
The adoption of
l74. The
174. of that rule did not in any manner amend,
any manner amend, modify, or delete the requirements
of Board Rule
ofBoard Rule 190.8(1)(1).
l90.8(1)(L).
Board is hereby notifying you
Accordingly, the Board you that any
any representation that you make regarding
you make
Teledoc's program being in conformance
Teledoc’s program Board’s rules will be
with the Board's
conformance with firmly
and firmly
be directly and
By copy
by the Board. By
refuted by Board is sending this correspondence to the Texas
copy hereof, the Board
Medical Association.
Medical
The Board
The Board will take all legal steps as are necessary should it
it see continued advertisements
containing the material referenced above.
Sincerely,
Nancy Leshikar, J.D.
Nancy
Counsel
General Counsel
CC!
cc: LONE STAR
VIA LONE
VIA OVERNIGHT DELIVERY
STAR OVERNIGHT DELIVERY
Rocky Wilcox, JD
Rocky JD
Vice President and General Counsel
Vice Counsel
Texas Medical
Texas Medical Association
401 West 15th
401 West l5th Street
Texas 78701
Austin, Texas 78701
LOCAL ADDRESS:
LOCAL ADDRESS: 333
333 GUADALUPE, TOWER 3, SUITE
GUADALUPE, TOWER AUSTIN TX
610 •~ AUSTIN
SUITE 610 78701I
TX 7870
WEB: www.tsbme.state.tx.us
WEB: www.tsbme.state.tx.us
Exhibit 3
Exhibit
Cause No. D-1-GN-11~0O2115
Cc:ntso D-1~GN-11-002115
COURT
DISTRICT COURT
Clerlr
Tl‘:t.ADOC, INC.,
Tl:l.ADOC, INC... §am THE DISTRICT
IN Tl--IE
Texas
Pl<:iin!iff,
I-"|.j1,irtIIIf, § Distr:c‘t'Ceut't
roam:
§
vv § 353rd JUDICIAL DISTRICT
JUDICIAL DISTRICT County,
Rnttrigtrez-Mt-:ndoza.
§
TEXAS MEDICAL
TEXAS BOARD cmd
I\/II':'DlC/\t. BOARD and §
The
NANCY LESHIKAn,
N/~NCY LESHIKAR, in her OFFICIAL
OFFICIAL §
roaroarmroarozcovrau
in Travis
GENERAL COUNSEL
CAT’/\Cl'I‘Y as GENERAL
CAPACITY COUNSEL § Filed of
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