TITLE 22. EXAMINING BOARDS

PART 9. TEXAS MEDICAL BOARD

CHAPTER 174. TELEMEDICINE

SUBCHAPTER A. TELEMEDICINE

22 TAC §174.5

The Texas Medical Board (Board) adopts amendments to Subchapter A: Telemedicine, §174.5, concerning Issuance of Prescriptions. The amendments to §174.5 are being adopted with non-substantive changes to the proposed text as published in the August 13, 2021, issue of the Texas Register (46 TexReg 4970). The adopted amendments to §174.5 will be republished.

Amendments to §174.5, Issuance of Prescriptions are adopted as follows:

§174.5 relating to Issuance of Prescriptions, the amendments to §174.5(e) allow physicians to utilize telemedicine to continue issuing previous prescription(s) for scheduled medications to established chronic pain patients, if the physician has, within the past 90 days, seen a patient in-person or via a telemedicine visit using two-way audio and video communication. The amendments will consistently and conveniently provide patients access to schedule drugs needed to ensure on-going treatment of chronic pain and avoid potential adverse consequences associated with the abrupt cessation of pain medication.

The Board received two comments. One joint written comment from the Texas Medical Association (TMA) and Texas Pain Society (TPS) an one comment from Emmanuel Elueze, PhD, regarding the proposed amendments to §174.5. No one appeared to testify regarding the amendments to §174.5 at the public hearing on September 17, 2021. A summary of the comments relating to §174.5, and the Board responses, are as follows.

Comment No. 1: TMA and TPS request that the reference in subsection (e)(1)(A) to "chronic pain patient" because identifying the patient in this manner unfairly stigmatizes patients who seek treatment for chronic pain. Instead, it should be clear that the individual is a patient of the physician, and the patient receives treatment for chronic pain.

Board Response: The Board believes that the language as proposed is necessary and appropriate based on the definitions of chronic pain in other rules. Accordingly, the Board declines this suggested change.

Comment No 2: TMA and TPS also state that the current language in subsection (e)(1)(B), "is receiving a prescription that is identical to a prescription issued at the previous visit", is too narrow and does not take into account flexibility in treatment needed to effectively manage chronic pain and could limit telemedicine services from being provided in this situation. TMA and TPS suggest changing the word "identical" to "similar" as it relates to the prescription being issued during the telemedicine visit.

Dr. Elueze suggests including the words "or lower dose" to subsection (e)(1)(B) to read "is identical or lower dose to a prescription issued at the previous visit."

Board Response: The Board maintains that the language of the rule as published is clear and unambiguous. The effect of changing the word from "identical" to "similar" is less clear and leaves too much room for interpretation. This language as proposed satisfies the intent as it relates to prescribing for chronic pain via telemedicine utilizing a prescription in a quantity and dose that is identical, or lesser in quantity or dose, than previously issued. Accordingly, the Board declines the suggested changes to the rule as published.

Comment No. 3: TMA and TPS also suggest changing subsection (e)(1)(B), relating to the prescription issued at "the previous visit" to "a prescription issued at a previous visit," allowing for a prescription issued at any previous visit to be issued at the telemedicine visit, even if such medication was not prescribed at the previous visit.

Board Response: The language in subsection (e)(1)(B) clearly implements the Board's intent to ensure continuity of care of a patient being treated for chronic pain by the same physician or health professional consistent with the previous visit in which the prescription for chronic pain was written. Therefore, the Board declines to further amend the language as proposed.

Comment No 4: TMA and TPS also urge the board to add the word "other" in subsection (e)(1)(C) to read "has been seen by the prescribing physician or other health professional." TMA and TPS argue that such change will provide for those emergency circumstances in which a previous prescribing physician or healthcare professional is no longer available, and the new physician or healthcare professional can then issue a prescription to treat chronic pain via telemedicine, so long as they have been seen by another physician or another physician's delegate in the last 90 days in-person or via telemedicine.

Board Response: The language in subsection (e)(1)(C) clearly implements the Board's intent to ensure continuity of care of a patient being treated for chronic pain by the same physician or health professional in a consistent manner. Therefore, the Board declines to further amend the language as proposed.

Comment No. 5: TMA and TPS also request changing the word "provider" in subsection (e)(1)(A) to "physician or health professional" in order to be consistent with subsection (e)(1)(C).

Board Response: The Board agrees with this suggested change. Accordingly, the amendments are adopted with non-substantive changes to the proposed text to §174.5(e)(1)(A) as published in the August 13, 2021, issue of the Texas Register (46 TexReg 4970).

Comment No. 6: TMA also suggests changing the references in subsection (e)(1)(C) to "Chapter" 111 of the Occupations Code to "Section 111" for correctness.

Board Response: The Board agrees that correcting the reference is appropriate and the Board adopts the proposed amendments with that non-substantive change to the proposed text to §174.5(e)(1)(C) as published in the August 13, 2021, issue of the Texas Register (46 TexReg 4970).

The amendments are adopted under the authority of Texas Occupations Code §153.001, which provides authority for the Board to adopt rules necessary to administer and enforce the Medical Practice Act and to adopt rules necessary to regulate and license physicians.

Other statutes affected by this rule: Chapter 111 of the Texas Occupations Code.

§174.5.Issuance of Prescriptions.

(a) The validity of a prescription issued as a result of a telemedicine medical service is determined by the same standards that would apply to the issuance of the prescription in an in-person setting.

(b) This rule does not limit the professional judgment, discretion or decision-making authority of a licensed practitioner. A licensed practitioner is expected to meet the standard of care and demonstrate professional practice standards and judgment, consistent with all applicable statutes and rules when issuing, dispensing, delivering, or administering a prescription medication as a result of a telemedicine medical service.

(c) A valid prescription must be:

(1) issued for a legitimate medical purpose by a practitioner as part of patient-practitioner relationship as set out in §111.005, of Texas Occupations Code; and

(2) meet all other applicable laws before prescribing, dispensing, delivering or administering a dangerous drug or controlled substance.

(d) Any prescription drug orders issued as the result of a telemedicine medical service, are subject to all regulations, limitations, and prohibitions set out in the federal and Texas Controlled Substances Act, Texas Dangerous Drug Act and any other applicable federal and state law.

(e) Limitation on Treatment of Chronic Pain. Chronic pain is a legitimate medical condition that needs to be treated but must be balanced with concerns over patient safety and the public health crisis involving overdose deaths. The Legislature has already put into place laws regarding the treatment of pain and requirements for registration and inspection of pain management clinics. Therefore, the Board has determined clear legislative intent exists for the limitation of chronic pain treatment through a telemedicine medical service.

(1) Treatment for Chronic Pain. For purposes of this rule, chronic pain has the same definition as used in §170.2(4) of this title (relating to Definitions). Telemedicine medical services used for the treatment of chronic pain with scheduled drugs by any means other than via audio and video two-way communication is prohibited, unless a patient:

(A) is an established chronic pain patient of the physician or health professional issuing the prescription;

(B) is receiving a prescription that is identical to a prescription issued at the previous visit; and

(C) has been seen by the prescribing physician or health professional defined under Section 111.001(1) of Texas Occupations Code, in the last 90 days either:

(i) in-person; or

(ii) via telemedicine using audio and video two-way communication.

(2) Treatment for Acute Pain. For purposes of this rule, acute pain has the same definition as used in §170.2(2) of this title. Telemedicine medical services may be used for the treatment of acute pain with scheduled drugs, unless otherwise prohibited under federal and state law.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 17, 2021.

TRD-202103704

Scott Freshour

General Counsel

Texas Medical Board

Effective date: October 7, 2021

Proposal publication date: August 13, 2021

For further information, please call: (512) 305-7016


PART 22. TEXAS STATE BOARD OF PUBLIC ACCOUNTANCY

CHAPTER 515. LICENSES

22 TAC §515.3

The Texas State Board of Public Accountancy adopts an amendment to 22 TAC §515.3, concerning License Renewals for Individuals and Firm Offices, without changes to the proposed text as published in the July 30, 2021, issue of the Texas Register (46 TexReg 4531). The rule will not be republished.

Section 161.0085 of the Health and Safety Code requires state agencies to ensure that businesses do not require a client to provide documentation certifying the client's COVID-19 vaccination or post transmission recovery in order to gain access or receive services from the client or business. The rule amendment is adopted under the Public Accountancy Act, Texas Occupations Code, Section 901.151(a)(2) (West 2009) which provides the agency with the authority to amend, adopt and repeal rules deemed necessary or advisable to effectuate the Act.

No comments were received regarding adoption of the amendment.

The amendment is adopted under the Public Accountancy Act (Act), Texas Occupations Code, §901.151 and §901.655 which provides the agency with the authority to amend, adopt and repeal rules deemed necessary or advisable to effectuate the Act.

No other article, statute or code is affected by the adoption.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 16, 2021.

TRD-202103676

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Effective date: October 6, 2021

Proposal publication date: July 30, 2021

For further information, please call: (512) 305-7842


22 TAC §515.11

The Texas State Board of Public Accountancy adopts an amendment to 22 TAC §515.11, concerning Licensing for Military Service Members, Military Veterans, and Military Spouses, without changes to the proposed text as published in the July 30, 2021, issue of the Texas Register (46 TexReg 4532). The rule will not be republished.

HB 139 adds to the definition of "armed forces of the United States" to include Space Force. Members of the military are provided licensing accommodations to minimize the hardships of military service. Members of the recently created Space Force are being included in the definition of armed forces of the United States.

No comments were received regarding adoption of the amendment.

The amendment is adopted under the Public Accountancy Act (Act), Texas Occupations Code, §901.151 and §901.655 which provides the agency with the authority to amend, adopt and repeal rules deemed necessary or advisable to effectuate the Act.

No other article, statute or code is affected by the adoption.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 16, 2021.

TRD-202103677

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Effective date: October 6, 2021

Proposal publication date: July 30, 2021

For further information, please call: (512) 305-7842


CHAPTER 527. PEER REVIEW

22 TAC §527.2

The Texas State Board of Public Accountancy adopts an amendment to §527.2, concerning Definitions, without changes to the proposed text as published in the July 30, 2021 issue of the Texas Register (46 TexReg 4533) and will not be republished.

The amendment eliminates the requirement for an onsite peer review. Technology permits enhanced communications without a requirement for in-person evaluations.

No comments were received regarding adoption of the amendment.

The amendment is adopted under the Public Accountancy Act (Act), Texas Occupations Code, §901.151 and §901.655 which provides the agency with the authority to amend, adopt and repeal rules deemed necessary or advisable to effectuate the Act.

No other article, statute or code is affected by the adoption.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 16, 2021.

TRD-202103678

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Effective date: October 6, 2021

Proposal publication date: July 30, 2021

For further information, please call: (512) 305-7842