Teladoc Wins Restraining Order Against Texas Medical Board


February 20, 2015 | Reading Time: 3 Minutes

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The Texas Medical Board reportedly met last Thursday to discuss the much-debated topic of whether or not physicians should be required to meet with patients before prescribing medication. The meeting follows a January 16, 2015 decision by the Board to require that Texas physicians have a “face-to-face visit” with patients. This action by the Board thereby would inhibit the delivery of medical services by Texas-licensed physicians through one of the country’s largest employers of telehealth, Teladoc. The Board explained that their decision was based on their need to protect public health.

Teladoc immediately sought to prevent the decision from taking effect. Four days later, a Travis County judge approved a temporary restraining order for Teladoc, citing that “no imminent peril to public health, safety or welfare exists.” This latest round of decisions follows a heated battle between Texas and Teladoc. Similar battles are taking place in several other states over in-person intake requirements, interjurisdictional licensing and related laws.

Allied Health Licensing Boards & Professional Associations

Many allied health professional boards and professionals are following these events with keen interest, wondering where decision-makers will rest on these pivotal issues for psychology, counseling, social work, behavior analysis, speech pathology, physical therapy, etc. Ethical standards and guidelines issued by leading mental health professional associations regarding telepractice typically do not take a stand for or against a requirement for in-person intakes or assessments.

The American Telemedicine Association has taken the stance that such intakes are unnecessary. The fascinating twist on the issue however, is that most telemedicine does not occur directly between a physician as an independent practitioner and a patient. For decades, the traditional model for telehealth has involved an in-person assessment by a third party, who sees the patient in-person. Whether a nurse who takes vital signs, or a medic who serves in the military, or a “collaborator” who is a para-professional located whereever the patient is in geographic space, an accountable, trained third party is available to outline and present relevant issues for intake and assessment. It therefore is the move away from such a third party that raises concerns for medical as well as behavioral professionals.

The American Psychological Association’s (APA) “Guidelines for the Practice of Psychology” reflects this penchant in Guideline 2, the “Standards of Care in the Delivery of Telepsychological Services”:


When providing telepsychology services, considering client/patient preferences for such services is important. However, it may not be solely determinative in the assessment of their appropriateness. Psychologists are encouraged to carefully examine the unique benefits of delivering telepsychology services (e.g., access to care, access to consulting services, client convenience, accommodating client special needs, etc.) relative to the unique risks (e.g., information security, emergency management, etc.) when determining whether or not to offer telepsychology services. Moreover, psychologists are aware of such other factors as geographic location, organizational culture, technological competence (both psychologist and client/patient), and, as appropriate, medical conditions, mental status and stability, psychiatric diagnosis, current or historic use of substances, treatment history, and therapeutic needs that may be relevant to assessing the appropriateness of the telepsychology services being offered. Furthermore, psychologists are encouraged to communicate any risks and benefits of the telepsychology services to be offered to the client/patient and document such communication. In addition, psychologists may consider some initial in-person contact with the client/patient to facilitate an active discussion on these issues and/or conduct the initial assessment.

The APA statement above gives a clear warning, but apparently leaves the decision about in-person intake and assessment to the clinician. Whether or not clinicians using telehealth systems online are actually conducting the type of intake detailed above remains questionnable. As we’ve seen in some of our recent blog posts, a minimalistic approach to assessment and intervention seems to be proliferating. See Text Messaging for Counseling, Therapy & Crisis Intervention. However, the vast majority of telehealth-related research uses telehealth systems for follow-up only, and not for initial intake.

What do you think of the need for in-person assessments for telemental health?

Introduction to Telehealth Theory & Practice

Enjoy a fast-moving overview of telebehavioral and telemental health. Understand the key points related to telehealth clinical, legal, ethical, technology, reimbursement, social media and other pivotal issues.

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Wayne Roffer, Psy.D.
Wayne Roffer, Psy.D.
8 years ago

The Texas Medical Board, prior to their January 2015 meeting, had allowed physicians to prescribe medications without first seeing them in-person. There were some restrictions, but generally, physicians were allowed to prescribe medication without an in-person evaluation, however, the patient had to be in an “established medical” site (though not necessarily one with a DEA registration) and a qualified presenter had to be on site to provide a physical.
The problem with the prior allowances by the Texas Medical Board is that it was insufficient compared to the Ryan Haight Act – a federal law passed in 2008 that requires physicians to preform an in-person assessment prior to prescribing medications. Physicians are exempt from the Act, though, if they meet the federal definition of practicing telemedicine (in brief, patient is located in a medical facility that has a DEA registration).
It would seem that the Texas Medical Board’s decision this past January was to “update” their requirements to be at least consistent with federal law, if not more stringent. Teledoc didn’t like that. I would hope that Teledoc was at least adhering to federal law and their beef with the Texas Medical Board is that their requirements are more stringent than federal law (I would have to read their requirements more closely to see exactly what they are requiring of physicians in terms of telemedicine). If teledoc was allowing their physicians to write scripts without first seeing them, and the patients were not seen in a site that was exempt from the act, those physicians would thereby in violation of federal law.
As far as psychologists and other mental health therapists go, I would not mind a state or federal law requiring an in-person assessment first, as that is how I currently practice now, but don’t know if it’s necessary. The purpose of the Act described above was to provide the opportunity for a physical and other medical issues to be addressed prior to the start of telemedicine. This is not something psychologists generally involve themselves in, though some psychologists are noticing that blood pressuring monitoring, etc are part of the Physician Quality Reporting System for psychologists who see Medicaid participants. In order to meet these requirements, an in-person assessment may be necessary.
I say may be, as there are devices that allows blood pressure, heart, etc be obtained remotely as well. We have telestethoscopes at my place of work. There has to be someone on the other end, though, to assist, but these devices will likely lead to less need for an in-person assessment.
I think it’s good clinical practice to see a patient in-person first prior to the start of any telemental health session. Telemental health is a modality of treating patients, and as such, should be discussed with the person prior to the start of any such treatment. Not everyone is appropriate for telemedicine and conducting such a session prior to such an evaluation is clinically inappropriate (my professional opinion). There are some exceptions, though, whereby it is not possible for someone to attend an in-person session. However, if they can make one session in-person, why not offer that? Besides being able to assess for appropriateness of telemedicine, you can more easily review informed consent forms, get signatures, obtain baseline screening and other clinical assessments, and get a better physical assessment of the person.
There is also something to be said about the warm nature of an in-person meeting in establishing rapport.

Dee Dunn
Dee Dunn
8 years ago

ACKKK! The problem with requiring face-to-face assessments for all mental health services is that it is too global a restriction. I can think of many, maybe the majority, of clinical issues that might arise and could be appropriately and effectively addressed beginning with a tele-assessment as well as other situations where tele-assessment in the absence of any other support could be a very risky decision. That said, I would rather risk underserving an individual one time than to drive away one by the effects and consequences of overregulation.
The success (and proliferation) of grass-roots online support groups tells me those people want to be connected – but in their own, safe, secure (as they see it) comfortable, and convenient way. The use of pen-names in those same types of groups tells me many of those individuals are not always ready to fully disclose.
In our efforts to improve life in our society are we “reaching out” to provide services or “grabbing them by the collar and dragging ’em in for their own good”?
If we make providing services an obstacle course for providers, past experience suggests we will cobble up government programs which serve mostly those who cannot afford to make their own choices.
Dee Dunn, MA, LPC, NCC…

suzanne morris
suzanne morris
8 years ago

What I see as a possible long term negative affect is that telehealth will become the norm and it will become too expensive to see a doctor live. I also believe in my counseling practice that people can easily scam you from a distance and it’s much harder in person. So, I’m hoping there will be limitations based on certain possible diagnoses and on the types of medications prescribed. Perhaps also the distance to the closest doctor as that can be a huge issue in some populations. Be aware that big pharmaceutical companies will love everyone prescribing more meds whether it’s to the patient’s benefit or not.

Marlene Maheu, Ph. D.
Marlene Maheu, Ph. D.
8 years ago
Reply to  suzanne morris

You are right about telehealth soon to be the norm. We can all count on that happening within the decade in the US. The thing is, there is no going back. The most important thing to do now is to get training to make sure that good, quality care is being delivered. It is entirely possible for that level of care to be delivered by behavioral professionals, but professionals need very specific training to know how to do that.
For courses to learn how to deliver legal, ethical and solid clinical services through distance counseling, consider taking the courses we offer in this area: They are all online, have NBCC CE approval and will qualify you for the Distance Credentialed Counselor (DCC) credential. They distill over 3,500 references into easily accessed, easily understood materials that give3 you a roadmap for how to get started, manage legal and ethical risk and how to prosper online. Send us an email or call us if you have any questions.

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