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TITLE 22EXAMINING BOARDS
PART 14TEXAS OPTOMETRY BOARD
CHAPTER 279INTERPRETATIONS
RULE §279.16Telehealth Services

(a) Definitions. The following words and terms, when used in this section shall have the following meanings unless the context indicates otherwise.

  (1) Established treatment site--A location where a patient will present to seek optometric care where there is an optometrist, therapeutic optometrist or physician present and sufficient technology and equipment to allow for an adequate physical evaluation as appropriate for the patient's presenting complaint. It requires an optometrist-patient relationship. A patient's private home is not considered an established medical site.

  (2) Face-to-face visit--An evaluation performed on a patient where the provider and patient are both at the same physical location or where the patient is at an established medical site.

  (3) In-person evaluation--A patient evaluation conducted by a provider who is at the same physical location as the location of the patient.

  (4) Provider--An optometrist or therapeutic optometrist holding an active Texas license.

  (5) Distant sight provider--The provider providing the telehealth service from a site other than the patient's current location.

  (6) Telehealth service--A health service, other than a telemedicine service, that is delivered by a licensed optometrist or therapeutic optometrist acting within the scope of his or her license, and that requires the use of advanced telecommunications technology, other than telephone or facsimile technology, including:

    (A) compressed digital interactive video, audio, or data transmission;

    (B) clinical data transmission using computer imaging by way of still-image capture and store and forward; and

    (C) other technology that facilitates access to health care services or optometric specialty expertise.

(b) Fraud and Abuse Prevention.

  (1) All optometrist or therapeutic optometrists that use telehealth services in their practices shall adopt protocols to prevent fraud and abuse through the use of telehealth services. These standards shall be consistent with those established by the Texas Health and Human Services Commission pursuant to §531.02161 of the Government Code.

  (2) In order to establish that an optometrist or therapeutic optometrist has made a good faith effort in the licensee's practice to prevent fraud and abuse through the use of telehealth services, the optometrist or therapeutic optometrist must implement written protocols that address the following:

    (A) authentication and authorization of users;

    (B) authentication of the origin of information;

    (C) the prevention of unauthorized access to the system or information;

    (D) system security, including the integrity of information that is collected, program integrity, and system integrity;

    (E) maintenance of documentation about system and information usage;

    (F) information storage, maintenance, and transmission; and

    (G) synchronization and verification of patient profile data.

(c) Notice.

  (1) Privacy Practices.

    (A) Providers that communicate with patients by electronic communications other than telephone or facsimile must provide patients with written notification of the providers' privacy practices prior to evaluation or treatment. In addition, a good faith effort must be made to obtain the patient's written acknowledgement, including by e-mail, of the notice.

    (B) The notice of privacy practices shall include language that is consistent with federal standards under 45 CFR Parts 160 and 164 relating to privacy of individually identifiable health information.

  (2) Limitations of Telehealth. Providers who use telehealth services must, prior to providing services, give their patients notice regarding telehealth services, including the risks and benefits of being treated via telehealth, how to receive follow-up care or assistance in the event of an adverse reaction to the treatment or in the event of an inability to communicate as a result of a technological or equipment failure. A signed and dated notice, including an electronic acknowledgement, by the patient establishes a presumption of notice.

  (3) Necessity of In-Person Evaluation. When, for whatever reason, the telehealth modality in use for a particular patient encounter is unable to provide all pertinent clinical information that a health care provider exercising ordinary skill and care would deem reasonably necessary for the practice of optometry or therapeutic optometry at an acceptable level of safety and quality in the context of that particular encounter, then the distant site provider must make this known to the patient and advise and counsel the patient regarding the need for the patient to obtain an additional in-person evaluation reasonably able to meet the patient's needs.

  (4) Complaints to the Board. Optometrists or therapeutic optometrists that use telehealth services must provide notice of how patients may file a complaint with the Board on the optometrist's or therapeutic optometrist 's website or with informed consent materials provided to patients prior to rendering telehealth services.

(d) Services Provided at an Established Medical Site. Telehealth services provided at an established medical site may be used for all patient visits, including initial evaluations to establish a proper doctor-patient relationship between a distant site provider and a patient.

  (1) a provider or licensed physician must be reasonably available onsite at the established medical site to assist with the provision of care.

  (2) A distant site provider may authorize an assistant at the established medical site to perform the procedures authorized by §279.1 and §279.3 of this title (relating to Contact Lens Examination and Spectacle Examination), subject to the same requirements as provided in those sections.

(e) Evaluation and Treatment of the Patient.

  (1) Distant site providers who utilize telehealth services must ensure that a proper provider-patient relationship is established which at a minimum includes:

    (A) establishing that the person requesting the treatment is in fact whom he/she claims to be;

    (B) establishing a diagnosis through the use of acceptable medical practices, including patient history, mental status examination, physical examination (unless not warranted by the patient's mental condition), and appropriate diagnostic and laboratory testing to establish diagnoses, as well as identify underlying conditions or contra-indications, or both, to treatment recommended or provided;

    (C) discussing with the patient the diagnosis and the evidence for it, the risks and benefits of various treatment options; and

    (D) ensuring the availability of the distant site provider or coverage of the patient for appropriate follow-up care.

  (2) Treatment. Treatment and consultation recommendations made in an online setting, including issuing a prescription via electronic means, will be held to the same standards of appropriate practice as those in traditional in-person clinical settings.

(f) Technology and Security Requirements.

  (1) At a minimum, advanced communication technology must be used for all patient evaluation and treatment conducted via telehealth.

  (2) Adequate security measures must be implemented to ensure that all patient communications, recordings and records remain confidential.

  (3) Electronic Communications.

    (A) Written policies and procedures must be maintained when using electronic mail for provider-patient communications. Policies must be evaluated periodically to make sure they are up to date. Such policies and procedures must address:

      (i) privacy to assure confidentiality and integrity of patient-identifiable information;

      (ii) health care personnel, in addition to the provider, who will process messages;

      (iii) hours of operation and availability;

      (iv) types of transactions that will be permitted electronically;

      (v) required patient information to be included in the communication, such as patient name, identification number and type of transaction;

      (vi) archival and retrieval; and

      (vii) quality oversight mechanisms.

    (B) All relevant provider-patient e-mail, as well as other patient-related electronic communications, must be stored and filed in the patient record.

    (C) Patients must be informed of alternative forms of communication for urgent matters.

(g) Patient Records for Telehealth Services.

  (1) Patient records must be maintained for all telehealth services. Both the distant site provider and the provider or physician at the established medical site must maintain the records created at each site unless the distant site provider maintains the records in an electronic health record format.

  (2) Distant site providers must obtain an adequate and complete medical history for the patient prior to providing treatment and must document this in the patient record.

  (3) Patient records must include copies of all relevant patient-related electronic communications, including relevant provider-patient e-mail, prescriptions, laboratory and test results, evaluations and consultations, records of past care and instructions. If possible, telehealth encounters that are recorded electronically should also be included in the patient record.


Source Note: The provisions of this §279.16 adopted to be effective March 4, 2013, 38 TexReg 1362

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