| (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.
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