Health Care

Locke Lord QuickStudy: Texas Medical Board’s Response to COVID-19‎

Locke Lord LLP
March 27, 2020

The Texas Medical Board, with direction and assistance from Governor Abbott’s administration, ‎is issuing and implementing various temporary rules and guidance to help Texas physicians, ‎physician assistants and other health care professionals respond to COVID-19. These standards ‎will be in effect through the time period that encompasses the Governor's Disaster ‎Declaration in Texas. ‎

Audio-Only Telemedicine Encounters Temporarily Allowed in Texas
Governor Abbott approved the Texas Medical Board’s request to temporarily allow the use of ‎telephone-only encounters to establish a physician-patient relationship in Texas. Only a patient (or ‎a patient’s proxy decision maker) may initiate the audio-only encounters by telephone. The ‎standard of care remains the same whether the encounter is via technology or in-person, and ‎physicians should always attempt to ensure patient continuity of care. A patient must give ‎written or oral consent to the physician via telemedicine. This consent must be documented in the ‎patient’s medical record. The Texas Medical Board notes that for the encounter to be eligible for ‎payment, services provided through a telemedicine visit (including audio-only telephone calls) ‎must be medical services that would be billable if provided in person. ‎

Previously, under Texas law, a physician-patient relationship could only be established via a ‎synchronous audiovisual interaction between the patient and physician or asynchronous store and ‎forward technology (e.g., photographs). The Texas Medical Board is indicating that the ‎temporary expanded use of telemedicine may be used for diagnosis, treatment, ordering of tests, ‎and prescribing for all patient conditions. Chronic pain treatment is currently allowed by ‎telemedicine until April 10, 2020. ‎

Prohibition of Elective Procedures & Surgeries
The Texas Medical Board is prohibiting Texas physicians from performing surgeries and medical ‎procedures “not immediately medically necessary to correct a serious medical condition of, or to ‎preserve the life of, a patient who without immediate performance of the surgery or procedure ‎would be at risk for serious adverse medical consequences or death, as determined by the ‎patient's physician” until April 21, 2020. The Texas Medical Board’s accompanying guidance ‎indicates that the prohibition applies to all surgeries and procedures that are not immediately ‎medically necessary, including routine dermatological, ophthalmological, and dental procedures, ‎as well as most scheduled healthcare procedures that are not immediately medically necessary ‎‎(e.g., orthopedic surgeries). The Texas Medical Board notes that the performance of a non-urgent ‎elective procedures is considered a continuing threat to the public welfare during the battle ‎against COVID-19, and any physicians in violation of this prohibition could be subject to ‎disciplinary action. ‎

If a surgery or procedure is performed, the Medical Board expects that a patient’s medical record ‎clearly reflects why the elective surgery or procedure was urgent and necessary to prevent serious ‎adverse medical consequences or death. This documentation could include information on the ‎patient’s medical history, prescriptions, lab results, imaging, or other relevant factors used to ‎make the determination of the urgent necessity of the elective surgery or procedure.‎

The Texas Medical Board indicates that the prohibition does not apply to office-based visits ‎without surgeries or procedures. Notwithstanding, any office-based visits should be conducted in ‎accordance with standard protocols, including safety measures that prevent the spread of ‎COVID-19.‎

Expedited Licensing of Out-of-State Physicians
The Texas Medical Board and the Texas Board of Nursing are expediting temporary license ‎applications for out-of-state physicians, physician assistants, certain retired physicians, nurses, ‎and other license types to assist in Texas' response to COVID-19. The Texas Medical Board is ‎allowing out-of-state physicians to obtain a Texas limited emergency license via two options: (1) ‎hospital to hospital credentialing or (2) the issuance of an emergency license based on written ‎verification of a physician licensed in Texas.‎

With respect to hospital to hospital credentialing, a licensed physician to practice medicine in ‎another U.S. State, territory or district and has unrestricted hospital credentials and privileges in ‎any U.S. state, territory or district may temporarily practice medicine at a Texas hospital upon the ‎following terms and conditions being met: (1) the licensed Texas hospital verifies the physician’s ‎credentials and privileges; (2) the licensed Texas hospital maintains a list of all physicians coming ‎to practice and provides this list to the Texas Medical Board within ten (10) days of each ‎physician starting to practice at the licensed Texas hospital; and (3) the licensed Texas hospital ‎provides the Texas Medical Board a list of when each physician has stopped practicing medicine ‎in Texas within ten (10) days after the physician has stopped practicing medicine under the ‎emergency rule. Hospitals may e-mail the required provider information to ‎ ‎

With respect to applications for an emergency license based on the verification of a Texas ‎licensed physician, the Texas Medical Board is permitting a singular Texas licensed physician to ‎submit one application and attach a list of an unlimited number of out-of-state physicians that the ‎physician is verifying for purposes of obtaining the emergency licenses.  According to a ‎representative of the Texas Medical Board, this is the most efficient process to obtain emergency ‎licensure and the license is valid until the public health emergency or state of disaster is lifted ‎with no need to file a renewal or extension during the term of the emergency.  The Board will ‎conduct a limited review of each physician’s licensure in their home state and prior disciplinary ‎action before providing emergency licensure.  ‎

The Texas Medical Board is also encouraging Texas physicians who have been retired for less ‎than two years to consider returning to active status.‎

Your Locke Lord contacts and the authors of this article would be happy to ‎help you navigate ‎the CARES Act and its implications as it relates to the health care industry.‎

Please visit our COVID-19 Resource Center often for up-to-date information to help you stay ‎informed of the legal issues related to COVID-19.‎