# in Re Teladoc, Inc. > Texas Court of Appeals, 3rd District (Austin) · January 27, 2015 URL: https://www.frixlaw.com/law-library/cases/4044270 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** January 27, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4044270 ## Opinion text 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. § § f03nr 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.tcladecino. commmo lhO Mensa COIOIO 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 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.mxm\ 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;uinusilc Services C'CMS''). Mediuurl Scrvic 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! 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PA P/\ dlc 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.tDoIHndard lI4>\\'u\'t:l. in my my ml; rok 4N ;t~ a member nfthc mt:nt|)cr of ;l tlw CMS tmtttd. I will be lltlppyltuppy 10 l [0 help itnp|t:nu:nl mvkw my implement any ll‘.\/1L‘\\’ my idan Ll ~ ml for plty flclnrd feels ttn in Tc. tn Tc.xas, lccls arc ~m. wnry lf" turn nerc>sary y(lu will set' ,yutl lfymt ynu but Jlhtn-c see. Ilhnl hai'C ttnw.tv:rm;,-ly upheld unwaveringly Ltphcld lht, lhc htgltcst highest re r. I)t)ttr(l'.~judgnlx:nI ~ I appreciate your considerution l[\l‘£ClillC ymtr (:|)ll.\‘lU(.‘l’llllt\n and Impe that and hope thtu 110nu i'unher l'u|1ht:r action wtll be ttcttun will cmmtct me ncc bl: necessary by your corncc. ~ hy Sltottld you have any furrhcr flee. Should furlhtrr qu,"tinn~. t‘]Ilhd·l'•!)\• ~! I 1 \ l 'l .x- ~·' • · ~ •l/ 1i Jlmr? U, 2UL‘5 Jcr.n U, 2001) ROBERT !V.‘~N ROBERT KRAMEH. MD iV,\N Kf1AMEH. MD 3702 IHOLLAIJD 3702 iOl LAI>JD 9 NIf 9 DALLAS T:lil!ali"n rct'crcnccd ubmc g: on n:v‘crcnccd ubc1\ ,. lms bus lwcn hccausc the dismi%cd hccau>c bvL‘ndia‘nIi: pnmdc dirccl um prnvidc Ali!» patit.·m cum puiicui In cnimiiiimz. \:ilfC to COil'llllH:r:-;.. . ' f '' ' ' Ut..:·1·wn \\ l'Jfll ~.:• t·~•""\; '· '1\ C1 >1\·'t:mint• cmnx\I.z1n| thi1Hd n:m-Jinx \:\t~ltUh\rily um! rcnmin:-i slmulnrily unnfixlmlinl. ~nnlitknlinl. smcomly. Sincorcly. ,r - ,/,,.,·~· '. . ,-"It 1 /:l it 'XtU.\ ‘x ~ ~ ' /·· / ‘ .~.6[M ir,(JrJ+' • 5L . 'r. "1’.-‘fv"“‘* 1,1nri RctiH't~~on. J.D uzui Rctimson. .. l.im\nqaI .J.D., f..IDnaqm Compl.-u‘rw: Cornpltlifil!~ and Invcsugnlmns and lnvos:~onllo:-~!' u'.=«:x:aa w EXHIBI EXHIBIT ~ TelaDoc«> Tel Doc"') " 77 W0 12010 mm. .. ,,,, .. mm. '0 ~ W \'I i ..0. 1 ' Proprietary and Confidential Proprietary and T0025 T 00::!5 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 PlTfi Kgcgju ,1 and and severe imp.’-Jot on severo impact ‘l‘eladnc's C:1bility on Telndoc's The Court further finds ability to do business in Texas. The that status quo lll:1t the status quo will be preserved by by the entry of this order. THEREFORE OHDEREO, is THERt:Fom; IT IS ORDERED. ADJUDGED ADJUDGED AND DECREED that Plaintiffs AND DECREED Plaintiff's Applie(ttion for ‘temporary Application he and is hereby Restraining Order be Temporary Hestroining GRANTED; hereby GRANTED; ACCOHDINGl.Y, THE ACCORDINGLY. THE TEXAS l:3OARD AND MEDICAL BOARD TEXAS MEDICAL NANCY LESHIKAR, AND NANCY LESHIKAR. IN HER Ol-'FlC|Al. HER OFFICIAL CAPACITY CAPACITY AS GENERAL COUNSEL AS G!:NERAL COUNSEL OF THE TEXAS OF THE TEXAS MEDICAl.. MEDICAL BOARD, and BOAHD, and lt1eir be and employees. and attorneys be their agents, servants, employees, ARE and hereby are, ARE HEREEIY ORDERED to desist and HF.HE£W ORDERED and ond refrain from implementing, communicating ond enforcing the rule stated Texas Meclicnl st1.1ted in the Texas Medical Board's June 16, 2011, Board’s letter dated June 2.011, and until the Texas unless nnd unloss Board properly enf.lcts Texas Medical Board enacts the rule according to the procodurnl requirem~nts of the APA. pmcediiral requirements APA. FURTHER ORDERED IT IS FURTHC:.H THATT Plaintiff shall ORDEI1ED THI\ and file with the clerk of execute and sh~ll execllte Court a this Collrl cns~deposlt bond. in the amount it bond, or czistbdeposit in lieu of bond, ... Sa:>~- amount of $$____.£‘__0_¢_-__ in 684 of the TeX(3S Rule 604 conlonnity with Rulo confonnity Texas liules Rules of Civil Procedure, payable to Defendant and and conditioned that Plaintill abide by Plc1intiff will obide the decision which may by U1o made in the may be made and that PlnintiH cause, F.lnd causa, all sums pay nil Plnintitf will pay money and sums of money may be and costs that may be adjudged against the ternporMy fi£JP.linst itit itif Lhe whole or in part. teniporriry restraining order shall be dissolved in whole The sh11ll forthwith, when clerk shall The clmk and after Plaintiff has by Plaintiff and when so requested by fHed filed tl1e bond described the bond clescril>ad nlmvo, issue a writ of temporary restraining order in conformity ab(lVO, ist:;ue with the with the I•1W and the terms law and Order. terms of this Orclor. lT IS FUfHI-IER IT‘ ORDERED that, FLlR'l'l-ll:‘.R OHDERED t11at, unless extended by agreement of the parties or by agreement changcxt changed byby further Court,t, this Order become of this Colli fut ther order or b~~come effective only at such time as Tcladoc the clerk of this court a with tt10 Tc:lmloc files wilh a bond amount of$ bond in the amount of $_.__g30 / to Sao~_. . 2 IT IS FUHTiif:H IllS ORDERED Uwt FUR'|'HER OHOEF~ED that PlaintifFs temporary injunction Plaintiff's application for a ternpormy heard before this court on will be lleard ~·;?e.p_feM~~r-:dttly g3_, 2011. at 2011, .cl~£~ o'clocll5)'W2v.| I\I5:W11v.l Exhibit 4 Exhibit MclR—a4—2ta13 11AR-04-2t2:113 15:23 15: 23 2El1ST 201ST DISTRICT COURT 512 854 512 2253 354 2268 F‘. B1/3 P.01/03 «g; Court Texas 2913 5'.0'H9- =:?riguez-Matdozmclork District County, U‘: CAUSE N0. CAUSE NO. D-1-GN-11-002115 D·l-GN-11-002115 The MAR in Travis TELADOC. TELADOC, IN INC., C., §§ IN THE DISTRICT IN THE COURT OF DISTRICT COURT OF Filed of M Amalia Plaintiff, Plaintiff. §§ §§ v. v. §§ TRAVIS TEXAS COUNTY, TEXAS TRAVIS COUNTY, §§ MEDICAL BOARD TEXAS MEDICAL TEXAS BOARD and and §§ NANCY LESHIKAR. in NANCY LESHIKAR, In her §§ OFFICIAL CAPACITY OFFICIAL CAPACITY ASAS §§ GENERAL COUNSEL GENERAL COUNSEL OF or THE rm»: §§ TEXAS MEDICAL TEXAS BOARD, MEDICAL BOARD, §§ Defendants, §§ 353“ 353R0 JUDICIAL msrmcr JUDICIAL DISTRICT ognzg AND ORDER AND JUDGMENT J§gDGME[‘j'I‘ This matter came 29th day of August, 2012 came before the Court on the 29"‘ 2012 pursuant to the summary judgment filed cross-motions for summary filed by by Plaintiff was Plaintitf and Defendants. Plaintiff was present through LU’. Defendants were its counsel of record, Matt Dow, Jackson Walker LLP. present through their counsel of record, Assistant Attorney Ted A. Ross, Office Attomey General Ted Office of the Attorney General. Having considered the parties' parties‘ motions and responses, as well as the other relevant material Jnaterial on tile, and having heard the arguments of counsel, the Court finds as follows: tile. 1. The June 16, The 20111 l~ttcr i6, 20\ by the General Counsel of the Texas letter sent by Medical Texas Medical Board to Telndoc, meaning of "rule" within the meaning Teladoc, Inc. is not an unpublished "rule" Tcxfls of the Texas (“APA“). Administrative Procedure Act ("APA"). 2. 2. Plaintiff has not established that it is entitled to permanent it relief. permanent injunctive relief. MRR-4-2813 MAR-04-2013 15:24 15:24 215T 201ST DISTRICT COURT DISTRICT COURT S12 854 512 2268 EIS4 2268 P.B2/3 P.02/03 IT THEREFORE ORDERED, IT IS THEREFORE AND DECREED ADJUDGED AND ORDERED. ADJUDGED DECREED that PIaintifi‘s Plaintiff's Motion Motion for Summary DENIED in accordance with the findings Summary Judgment DENIED findings above. IT IS FURTHER 1'!‘ ORDERED that Defendants' FURTHER ORDERED Summary Judgment is Defendants’ Motion for Su1nmary GRANTED GRANTED in accordance with lhe findings above. the findings FURTHER ORDERED IT IS FURTHER ORDERED that the Temporary Restraining Order entered in this case l9. 2011, and extended through the parties‘ cast: on July 19. parties' Rule II ll Agreement dated V August August l10, 2011. has expired and is 0, 2011, is therefore dissolved. FURTHER ORDERED IT IS FURTHER ORDERED that the Clerk of the Court is is to return to Plaintiff the $500 cash deposit in lieu of bond. $500 . ~ 11' so ORDERED, IT IS SO ORDERED. ADJUDGED AND DECREED ADJUDGED AND DECREED this 4ifiy Ga'y March. of March, 2013. J {;}!fl /‘. ;'f~frE AMYCLARK ;-~- THE I-lONOR'A§CE AMY CLARK Judge Presiding 1vii;AEr1UM MEACHUM- APPROVED AS APPROVED TO FORM: AS TO FORM: ~~ %9v- .. ~-~-·~·. ·--·-· Matt Dow JACKSON WALKER JACKSON L1,? WALKER LLP State Bar No. 06066500 06066500 100 100 Congress. Suite 1100 I 00 N. Congress, 1 Austin, Texas 78701 (512)236-2000 (512) 236·2000 236-2002 — Facsimile (512) 236·2002- Atrorneys for Plainnfl Attarneysfor Plaintiff 32325:, MI’-IR-Z4-2EI13 MAR-04-2013 15:24 15:24 DISTRICT COURT 2E|1‘3T DISTRICT 201ST COURT > S12 854 512 2268 E54 2268 F’.E3/E13 P.03/03 Te~ss___________._______ fid . Ross Attomcy General Assistant Attomey Srate Bar Sratc 24008890 Bar No. 24008890 or THE OFFICE OF OFFICE THE A'I'I‘ORNEY GENERAL OF A'ITORNEY GENERAL TEXAS OF TEXAS Admirdstrativc Law Administrative Law Division P.O. Box 12548 7871 1-2548 Austin, Texas 78711-2548 Austin. Phone: (512)475-4300 Phone: (512) 475-4300 457-4674 Fax: (512) 457·4674 Attorneys for Defendant: Defendants TDTRL P.03 TOTAL F’ B3 . Exhibit 5 Exhibit The District Court Filed in The Texas of Travis County, Texu LM 0 ~ 2013 LIV? MAR 0 It A~ At /0 /O.'t.f7A> "4/7/fr M, M. Amalia Rodrlguez·Mtndoza, Rodriguez-Mendoza, Clerk Clark Cause D-l—GN~l I-002i 15 No, D-1-GN-1!-002!15 Cause No. 'l‘l€l..-’\DO(.‘. INC.‘ TH.ADOC. INC., § THE DISTRICT IN THE IN COURT OF DISTRICT COURT OF Plaintirr. l’l-ttintili‘, ~ s § V. \/I § § TRAVIS COUNTY, TRAVIS TEXAS COUNTY, TEXAS TEXAS BOARD and MEDICAL BOARD TEXAS MEDICAL § roar:/.e-o::o:c0urov.~9.I‘)B\ I _ Sngnxcal Signed thi s ~ ~~ ‘ ' . rl~l \ 01 xhis‘ ‘L_r|u_\' ' ., Fébfu ~ l ]'f\.LCvU?"* S” ‘~ ~~ /x /L’ \/W5 1/’ V» _ 9 ,,.,,.;_... .___‘_ H1/C Honora Ie ,i+\m_\' Clark .\Icz1clm1n Judge Judgl' Presiding Pr«:sidin;_1 N l(:‘)WXv I Exhibit 6 Exhibit TEXAS COURT OF TEXAS COURT OF APPEALS, THIRD DISTRICT, APPEALS, THIRD AT AUSTIN DISTRICT, AT AUSTIN JUDGMENT RENDERED JUDGMENT DECEMBER 31, 2014 RENDERED DECEMBER 2014 NO. 03-13-00211-CV NO. 03-13-00211-CV Teladoc, Inc., Appellant v. Texas Medical Texas Medical Board and Nancy Board and Nancy Leshikar, General Counsel Official Capacity as General in her Official Texas Medical Counsel of the Texas Medical Board, Appellees FROM 353RD APPEAL FROM APPEAL COURT OF DISTRICT COURT 353RD DISTRICT OF TRAVIS COUNTY TRAVIS COUNTY BEFORE CHIEF BEFORE CHIEF JUSTICE JUSTICE JONES, PEMBERTON AND JUSTICES PEMBERTON JONES, JUSTICES AND FIELD FIELD AND RENDERED REVERSED AND REVERSED RENDERED -- OPINION -- BY JUSTICE OPINION BY PEMBERTON JUSTICE PEMBERTON from the judgment This is an appeal from This by the district court on judgment signed by March 4, 2013. Having on March Having and the parties’ reviewed the record and reviewed was reversible error in parties' arguments, the Court holds that there was court's judgment. the district court’s Court reverses the district court's judgment. Therefore, the Court judgment and court’s judgment and renders summary ummary judgment Board’s pronouncements Texas Medical Board's judgment declaring that Texas pronouncements regarding Rule 19 .8(1 Rule June 2011 )(L)(i)(JI) contained in its June .8(l)(L)(i)(lI) “rule” under the Administrative 2011 letter are a "rule" Procedu Act and, therefore, invalid under Procedu e Act under section 2001.035 The appellees shall of that Act. The 2001.035 of pay all c osts pay and the court below. sts relating to this appeal, both in this Court and Exhibit 7 Exhibit TEXAS MEDICAL TEXAS BOARD RULES MEDICAL BOARD RULES 9 Texas Administrative Code, Title 22, Part 9 Changes -- Emergency Rule Proposed Changes Chapter 190 Proposed to Board Disciplinary Guidelines Page11 of 2 Page 2 190.8 Violation When substantiated by Violation Guidelines. When by credible evidence, the following acts, practices,and conduct and conduct are considered to be The following shall not be of the Act. The be violations of be an exhaustive or exclusive listing. considered an and Welfare. Failure to practice in an Health and (1) Practice Inconsistent with Public Health an acceptable manner consistent with professional manner meaning of and welfare within the meaning with public health and of the Act Act includes, but is not limited to: (A) - (K) no (A)- change no change (L) prescription of any (L) dangerous drug or controlled substance without first any dangerous defined physician-patient establishing a [proper professional] defined physiciampatient relationship[ relationship[—wi¥h -with the patient]. (i) A [proper] (i) A defined physician-patient [pr=eper—} defined must include, physiciampatient relationship must include at a minimum[—|=equ-ires}: minimum[ requires]: (I) (I) establishing that the person requesting the medication is in fact who the person claims to be; who ofacceptable (ll) establishing a diagnosis through the use of (II) medical acceptable medical practices[ which includes documenting such as], which practices[-suehras-}, documenting and and performing: (-a-) patient history[;}~ (_-_a_—) history[,—}; (Q) (-b-) mental status examination[;}~ examination[,—}_', W must be examination that must L-c_-1 physical examination performed by be performed by either a face-to-face visit or in-person evaluation as defined in and ((4) 174.213) and Section 174.2(3) ofthis 4) of this title[,}. The requirement title ,—}. The reguirement for face—to-face or in-person evaluation does a face-to-face does not apply applv to of behavioral mental health services, except in cases ofbehavioral emergencies, as defined by Texas Health and by Texas and Safety Code, Code, and 4l5.253' and Section 415.253; 1-d-1 (-d-) appropriate diagnostic and laboratory testing. and (111) An online guestionnaire ill.D...An and answers guestions and questionnaire or questions exchanged answers exchanged evaluation of through email, electronic text, or chat or telephonic evaluation_Qf or consultation with a patient are inadequate to establish a defined defined physicianqgatient relationship by questionnaire is inadequate]; physician-patient relationship[ ([H-I-}I_\{) discussing with the patient the diagnosis and ([tlijiY.) and the evidence for it, it, the risks and benefits of various treatment options; and benefits of ([AqV) of the licensee or coverage of ([-I¥}y) ensuring the availability ofthe of the patient for appropriate follow-up care. Remainder Remainder of unchanged of rule unchanged Exhibit 8 Exhibit TEXAS MEDICAL BOARD TO: TO: Telemedicine Telemedicine Stakeholders Interested Parties FROM: FROM: Scott Freshour, General Counsel Counsel DATE: DATE: 16, 2015 January 16,2015 SUBJECT: SUBJECT: Texas Medical Texas Board’s Notification Medical Board's Emergency Rule Notification of an Emergency Rule Dear Telemedicine Stakeholders and Interested Parties: Dear Today the Texas Today Board (Board) adopted an amendment Texas Medical Board amendment on emergency basis to Rule on an emergency Rule )(L), relating to Violation Guidelines. The l90.8(l)(L), 190.8(1 The purpose purpose of amendment is to emergency amendment of the emergency by clarifying that a face-to-face visit or in-person evaluation is protect the public health and welfare by required before a practitioner can issue a prescription for drugs. Attached is a copy of Rule copy of 190.8(1 )(L), l90.8(l)(L), as amended. amended. This emergency emergency rule is effective immediately. The The same same version of the rule will proceed through the regular rulemaking process. Please know know that in adopting this emergency emergency rule, the Board was cognizant of Board was from the of the input from Telemedicine Stakeholders concerning Rule Telemedicine of an "established Rule 174 related to the issue of “established medical site" site” and the provision of Board Staff has drafted of mental health services. In response to this input, Board potential amendments amendments to Rule 174, which which are also included as an attachment for your review. The two rules, 190.8(l)(L) The two l90.8(l)(L) and and 174, will be presented at the February 12 and and 13, 2015 Board 2015 Board meeting comment according to the regular rulemaking meeting for consideration for publication and comment rulemaking process. Board Staff has endeavored to make Board two rules compatible to ensure patient safety while allowing make the two greater access to mental health services via telemedicine. The Board The Board looks forward your input on forward to your on these issues. C: Mari Robinson, Executive Director Locatinn Address: Location Address: Mailing Address Mailing Address Phone 512.305.7010 Phone Tower 3, Suite 610 Guadalupe, Tower 333 Guadalupe, MC-251, PO. Box MC-251, P.O. Box 2018 Fax 512.305.7051 Austin, Texas Texas 78701 Texas 78768-2018 Austin, Texas www.tmb.state.lx.us www.trnb.state.tx.us Cause No. Cause No. - - - - - - TELADOC, INC., TELADOC, INc., §§ THE DISTRICT IN THE IN COURT DISTRICT COURT Plaintiff, §§ v. §§ §§ §§ _ JUDICIAL DISTRICT JUDICIAL DISTRICT §§ §§ §§ TEXAS MEDICAL BOARD, TEXAS MEDICAL BOARD, §§ Defendant. Defendant. §§ TRAVIS TEXAS COUNTY, TEXAS TRAVIS COUNTY, TEMPORARY RESTRAINING TEMPORARY ORDER RESTRAINING ORDER On this day, the Court On of Plaintiff, temporary restraining order of Court heard the application for temporary and Defendant lnc. Plaintiff and Teladoc, Inc. Defendant appeared appeared by and through by and through their attorneys of Afier of record. After considering and attachments in support of considering the pleadings, the affidavit and and the of the pleadings, and argument of counsel, the Court argument of of the opinion that the application for a temporary restraining Court is of be granted for the following should be order should following reasons: (i) accordance with Tex. Gov't. (i) in accordance Code §§ Gov‘t. Code 2001.038, 2001.03 8, Plaintiff has asserted a valid cause of action for declaratory relief with cause of with regard to the invalidity of the Texas ofthe Board’s emergency Medical Board's Texas Medical amendment to, 22 emergency amendment 22 T.A.C. T.A.C. 190.8(1)(L) l90.8(1)(L) as set General Counsel’s out in the General memo of Counsel's memo oflanuary January 16, 2015; (ii) shown a probable right (ii) Plaintiff has shown to aajudgment because no judgment because imminent peril to public health, safety or welfare exists and no imminent and Defendant Defendant of Texas Administrative Procedure Act did not follow the requirements ofTexas (APA) §2001.034(a)(l)- Act (APA) § 200l.034(a)(1)— (2), (b), and and so therefore the rule is invalid; and and (d) and and (iii) and immediate and (iii) Plaintiff will suffer immediate harm because irreparable harm because the proposed proposed enforcement enforcement of emergency rule will have of the emergency have an an immediate and severe impact immediate and Teladoc’s ability to do on Teladoc's impact on The Court further do business in Texas. The finds that the status quo finds quo will be preserved by of this order. by the entry of THEREFORE ORDERED, IT IS THEREFORE IT ORDERED, ADJUDGED AND DECREED ADJUDGED AND DECREED that Plaintiff's Plaintiffs Temporary Restraining Order Application for Temporary Order be GRANTED; and is hereby GRANTED; be and THE TEXAS ACCORDINGLY, THE ACCORDINGLY, MEDICAL BOARD, TEXAS MEDICAL BOARD, and and its agents, servants, and hereby are, ARE employees, and attorneys be and ORDERED to desist and HEREBY ORDERED ARE HEREBY and refrain communicating and from implementing, communicating from Texas Medical and enforcing the rule stated in the Texas Board’s Medical Board's 2015 until further letter dated January 16, 2015 ofthis firrther order of this Court. IT IS FURTHER ORDERED THAT FURTHER ORDERED THAT Plaintiff shall execute executeand of this file with the clerk ofthis and file amount of$ of bond, in the amount Court a bond, or case deposit in lieu of of $_ _ _ _ in conformity with Rule 684 Rule Texas Rules of 684 of the Texas and conditioned that Defendant and of Civil Procedure, payable to Defendant by the decision which Plaintiff will abide by may be which may made in the cause, and be made and that Plaintiff will pay pay all sums money and sums of money may be and costs that may be adjudged against it it if the temporary restraining order whole or in part. shall be dissolved in whole The when so requested by The clerk shall forthwith, when and after by Plaintiff and filed the afier Plaintiff has filed of temporary restraining order in conformity with the law bond described above, issue a writ of bond and law and the terms of of this Order. IT IS FURTHER ORDERED that, unless extended by FURTHER ORDERED of the parties or agreement of by agreement changed by changed of this Court, this Order by further order of become effective only at such Order become such time Teladoc time as Teladoc amount of$ bond in the amount files with the clerk ofthis court a bond files of$_ _ _ __ ORDERED that Plaintiffs application for a temporary injunction will FURTHER ORDERED IT IS FURTHER be on be heard before this court on , January _ _, 2015, at , , o’clock o'clock .m. .11’). IT IS FURTHER ORDERED that this order expires no FURTHER ORDERED no later than fourteen days after amended by issuance or until earlier amended of the Court, whichever by order of whichever occurs first. Signed and _.m. o’clock _.m. oflanuary, 2015, at _ _ o'clock and issued this _ _ day ofJanuary, 2 JUDGE PRESIDING JUDGE PRESIDING l20l8l4Iv‘l 12018141 v.l 3 Exhibit 2 Exhibit Filed In The EJi.eI‘rict Court of Tr:»sVE!~: CCI‘LXl8;',, 9 Tc:x::.e °"%..I.:—LII.! ____3IS5 __ at_ ‘ Cause No. Cause D«l-GN—l5-000238 No. D-1-GN-15-000238 Velva L. Price, 9.3:-mi elm TELADOC, INC., TELADOC, §§ IN THE IN THE DISTRICT COURT DISTRICT COURT Plaintiff, §§ v. v. §§ 53rd JUDICIAL DISTRICT JUDICIAL DISTRICT §§ TEXAS MEDICAL TEXAS MEDICAL BOARD, BOARD, §§ Defendant. §§ TRAVIS TEXAS COUNTY, TEXAS TRAVIS COUNTY, TEMPORARY RESTRAINING TEMPORARY ORDER RESTRAINING ORDER On this day, the Court On of Plaintiff, heard the application for temporary restraining order of Court heard Teladoc, Inc. Plaintiff and Teladoc, Defendant appeared and Defendant by and appeared by of record. After and through their attorneys of considering and attachments considering the pleadings, the affidavit and and the attaclunents in support of the pleadings, and argument of argument of counsel, the Court of the opinion Court is of temporary restraining opinion that the application for a temporary order should be (i) in accordance be granted for the following reasons: (i) with Tex. Gov't. accordance with Code §§ Gov’t. Code 2001.038, Plaintiff has asserted a valid cause of action for declaratory relief with 2001.038, with regard to the of the invalidity of Texas Medical Texas Board’s emergency Medical Board's amendment to, 22 emergency amendment 22 T.A.C. T.A.C. 190.8(1)(L) 190.8(l)(L) as set memo of Counsel’s memo out in the General Counsel's shown a probable of January 16, 2015; (ii) Plaintiff has shown probable right to a judgment judgment because no imminent because no and Defendant imminent peril to public health, safety or welfare exists and Defendant Texas Administrative Procedure of Texas did not follow the requirements of Procedure Act (APA) §§ 2001.034(a)(l)- Act (APA) 200l.034(a)(l)- and (d) (2), (b), and and (iii) and so therefore the rule is invalid; and (d) and immediate and (iii) Plaintiff will suffer immediate and irreparable harm harm because the proposed enforcement of proposed enforcement emergency rule will have of the emergency have an an immediate immediate and on Teladoc’s and severe impact on Teladoc's ability to do The Court do business in Texas. The Court further fuither quo will be finds that the status quo be preserved of this order. by the entry of preserved by IT IS THEREFORE IT ORDERED, ADJUDGED THEREFORE ORDERED, AND DECREED ADJUDGED AND DECREED that Plaintiff's Plaintiffs Temporary Restraining Order Application for Temporary Order be and GRANTED; and is hereby GRANTED; ACCORDINGLY, THE ACCORDINGLY, THE TEXAS MEDICAL BOARD, TEXAS MEDICAL BOARD, and and its agents, servants, and hereby are, ARE employees, and attorneys be and HEREBY ORDERED ARE HEREBY ORDERED to desist and and refrain from implementing, from communicating and implementing, communicating amendments to Rule 190.8(1)(1) and enforcing the amendments 190.8(l)(L) as stated in the memorandum from memorandum from the Texas Texas Medical Board’s General Counsel Medical Board's Counsel Scott Freshour dated 2015 until further order of January 16, 2015 ofthis Court. this Comi. IT IS FURTHER IT FURTHER ORDERED THAT Plaintiff shall execute and ORDERED THAT and file with the clerk ofthis of this amount of$ of bond, in the amount Court a bond, or cash deposit in lieu of of $ 55D“) 6()1) 0'0 in conformity with Rule 684 of Rule 684 Texas Rules of of the Texas of Civil Procedure, payable to Defendant Defendant and and conditioned that Plaintiff will abide by the decision which abide by may be which may made in the cause, and be made and that Plaintiff will pay pay all sums of sums money and of money may be and costs that may be adjudged adjudged against it if the temporary restraining order whole or in part. Shall be dissolved in whole shall The when so requested by The clerk shall forthwith, when and after Plaintiff has filed by Plaintiff and filed the bond law and of temporary restraining order in conformity with the law bond described above, issue a writ of and the terms of this Order. FURTHER ORDERED IT IS FURTHER ORDERED that, unless extended by agreement agreement of of the parties or changed changed by Order become by further order of this Court, this Order Teladoc become effective only at such time as Teladoc (TD files with the clerk of this court a bond files amount of$ bond in the amount of $ 55” tro .560 . FURTHER ORDERED IT IS FURTHER IT ORDERED that Plaintiffs application for a temporary injunction will be on be heard before this court on ~ f~;;., tC£.07«u3. J‘, 2015, at q::09 ,,-.l'-emtary- tiV at C! o’clock o'clock Am. t6._.m. FURTHER ORDERED IT IS FURTHER ORDERED that this order expires no no later than fourteen days after amended by issuance or until earlier amended whichever occurs first. by order of the Court, whichever Signed and issued this 20 :2.0 day of day 5:”3 o'clock January, 2015, at 3:43 oflanuary, o’clock £..m. a-.m. ~v ‘D. dJ.~ E49,, c-;J. Exam; JUDGE PRESIDING JUDGE PRESIDING l20l8l4|v.| 1201814lv.l 2 Exhibit 3 Exhibit THE TEXAS THE BOARD MEDICAL BOARD TEXAS MEDICAL ORDER ADOPTING ORDER ADOPTING EMERGENCY RULE EMERGENCY RULE 22 Texas 22 Code Texas Administrative Code l90.8(l )(L)(i)(Il) Chapter 190.8(1 )(L)(i)(1l) Violation Guidelines The Texas The Texas Medical Board amendment on Board (Board) adopts an amendment on an emergency emergency basis to Chapter 190, relating to Disciplinary Guidelines, I190.8, 90.8, Violation Guidelines. The Board The amendment on Board adopts an amendment on an emergency basis to Chapter 190, relating to Disciplinary an emergency Rulel90.8, Guidelines, Rule I 90.8, Violation Guidelines. TheThe emergency amendment to Rule190.8 adds emergency amendment "defined physician-patient relationship" and the (])(L) in order to clarify a "defined language to paragraph (l)(L) same before prescribing drugs. The requirements for establishing same amendment clearly defines The amendment defines the minimum elements minimum defined physician-patient relationship. The elements that are required to establish a defined The elements include a physical examination that must be performed either by by a face-to-face face—to—face visit or an in-person defined under in—person evaluation, as those terms are defined under existing board rules. Rule 190.8(1)(1) Rule was originally challenged by l90.8(l)(L) was by Teladoc in State District Court in Travis County, Teladoc claimed that a June 2011 Texas. Teladoc Nancy Leshikar (former General Counsel of 2011 letter, from Nancy of Board) to Teladoc, stating that Teladoc's· the Board) Teladoc's'business model of business model of providing medical services, medications/drags without establishing a physician-patient relationship including prescribing medications/drugs through aa face-to-face visit, waswas in violation of of Rule Rule 190.8(1)(1), l90.8(l)(l..), constituted improper rulemaking The State District found in favor of the Board was invalid. The rulemaking and was Board and and determined that June 2011 the June was a restatement of 2011 letter was of long-standing law and long—standing law and policy ofof the Board. Teladoc appealed Texas Court of Appeals, Third District, under Cause Court ruling to the Texas appealed the District Court Cause No. 03-13-00211-CV, Teladoc, 03-13-00211-CV, Ina, Appellantrvs. Taladoc, Inc., Board and Medical Board Appellant vs. Texas Medical and Nancy Nancy Leshikar, in her General Counsel Oflicial Capacity as General Qfficial Counsel of Medical Board, Appellees. Again, Teladoc of the Texas Medical claimed that a June claimed June 2011 from Nancy 2011 letter, from Nancy Leshikar (former General Counsel of the Board) to making and improper rule making Teladoc, constituted improper was invalid, as itit was and was was not properly promulgated under Government Code. Texas Government under the Texas On December Code. On December 31, 2014, the Third Court of Appeals ruled June 2011letter that the June Board Rule 190.8(1)(L)(i)(Il) 2011 letter interpreting Board 190.8(l)(L)(1)(ll) indeed constituted improper was invalid. rulemaking and was rulemaking The amendment is adopted on The amendment on an emergency emergency basis under §2001.034 of the TexasTexas Government The Board Code. The Board has determined that,· and welfare, it tht; in order to protect the public health and it is vital defined physician-patient relationship before prescribing drugs. The to establish a defined The Board Board further determined December 31 determined that the December 2015 ruling by ', 2015 31‘, by the Third Court of Appeals created an absence of and requirements, thereby allowing practitioners the ability to prescribe such parameters and of such drugs, without ever seeing a patient; thus resulting in imminent peril to public health, safety and welfare. ' The Board finds The Board finds that prescribing drugs to n examining the evaluating and examining a patient without first evnluating a face-to-face visit or in-person evnl,uation patient in n pntient makes itit impossible for a practitioner to evaluation makes insure proper and and accurate diagnosis andand treatment; to insure proper proper prescribing practices are medications prescribed are followed; to insure the drugs prescribed are therapeutic, i.e., the medications actually needed and/or proper for the condition (which has never been verified never been verified by by an in-person of drugs of evaluation or face-to-face visit); and/or prevent overuse/abuse of of any kind. The defined physician-patient relationship further results in a complete The absence of na required defined complete lack of and allows a patient with a subjective complaint, not verified, of patient records and of review of verified, to and receive a prescription drug simply call any practitioner and drug without an an in-person evaluation or This significantly face-to-face visit. This significantly increases the risk of mismanagement of of misdiagnosis, mismanagement patients, over-prescribing, drug diversion and prescribing. drug over-prescribing, inappropriate prescribing, drug abuse. Even and drug Even with drugs, such as antibiotics, there is an immediate of incorrect and immediate threat of and injudicious antibiotic use, which can result in bacterial overgrowth which overgrowth that thereby lead to the "superbugs, MRSA and “superbugs, such as MRSA other antibiotic resistant organisms. Prescribing drugs without a face-to-face visit or in-person evaluation is not the generally accepted medical practice andand does meet the standard of does not meet of care. Without Without requirements for a examine and evaluate a patient, by practitioner to examine by a face4o-face face-to-face visit or in-person evaluation, compromises and undermines prior to prescribing drugs, seriously compromises Board‘s statutory mandate undermines the Board's mandate and welfare. to protect the public health and The amendment to Rule The amendment Rule 190.8( l)(L) insures patient safety by l90.8(l)(L) specific parameters by setting forth specific and establish a and requirements for a practitioner to estabUsh a defined physician-patient relationship prior to prescribing drugs removes the ~tirrent drugs and, thereby, removes imminent peril to the public health, safety current imminent and welfare. The and amendment to Rule The amendment Rule 190.8(1 )(L) will protect patient health and safety by l90.8(1)(L) by of acceptable medical use of requiring the use comply with state law medical practices that comply law and medical board rules, while still providing ample access to medical treatment, via traditional medicine or providing ample ‘ telemedicine. · = This amendment This Rule 190.8(1)(1) amendment to Rule expand the requirements for treating patients, via l90.li(l)(L) does not expand medicine or telemedicine, but rather, clarifies traditional medicine clarifies existing requirements for prescribing and is consistent with and board’s existin'g with the board's existing rules related to acceptable medical pr11-ctices, practices, the current requirements for medical record documentation of patient evaluations and examinations, and existing requirements for the practice oftelemedicine. and of telemedicine. Based on the Third Based on Court of Third Court Appeal’s ruling, on of Appeal's on January 16, 2015. at an emergency meeting of I6, 2015, Board adopted Board, the Board the Board, adopted an amendment to Rule190.8(l)(L) an amendment Rulel 90.8(l)(L) relating to Violation Guidelines, to be The Notice be effective immediately. The of Adoption Notice of emergency Rule 190.8(1)(L) and emergency Adoption and filed l90.8(l)(L) were filed with with the Secretary of on January 16, of State on 201 S to be published in the Texas Register. i6, 2015 The amendment is adopted on The amendment on an emergency emergency basis under §2001.034 Government §200l.034 of the Texas Government Code and Code and under under the authority ofTexas Code Annotated, §§153.001, of Texas Occupations Code which provides §§I 53.001, which Board to adopt rules and authority for the Board and bylaws as necessary to govern its own own proceedings, perform its duties, perform practiceof duties. regulate the practice· and enforce this subtitle. of medicine in this state, and . , I 1 . t' The 13ourd The Board certifies emergency udopt,ion certifies that the emergency or adoption of the proposed rules has been reviewed by legal counsel and found to be uu valid exercise of the agency's legal authority. ORDERED by the Board that the proposed rules are ADOPTED It is therefore ORDERED lt ADOPTED on on an emergency A copy of the amended basis, as stated above. A basis. nmended rules ORDER, miles is incorporated in this ORDER. oflanuary Signed and entered as of January 16, 2015. 2l)|5. ~~~~~~~~sO~~-------~ mmbula, M.D., R.P 1.. President Michael rambula, 1., President · ' Texas Medical Board --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4044270. Public record. Not legal advice.