Opinion

in Re Teladoc, Inc.

Court
Texas Court of Appeals, 3rd District (Austin)
Filed
Jan 27, 2015
Status
Published
Cited by
0 cases
Authority
More cited than 3.0%

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

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Letter from

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Texas Board of Medical Examiners dismissing

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8,2006

TEXAS tviEDICAL BOARD

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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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