in Re Teladoc, Inc. ( 2015 )

ACCEPTED
03-15-00061-CV
3913245
03-15-00061-CV THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/27/2015 12:09:37 PM
JEFFREY D. KYLE
CLERK
NO.
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
1/27/2015 12:09:37 PM
JEFFREY D. KYLE
Clerk
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS
AUSTIN, TEXAS
IN RE TELADOC, INC.
Relator.
PETITION FOR TEMPORARY INJUNCTIVE RELIEF
JACKSON WALKER L.L.P.
Matt Dow
State Bar No. 06066500
Dudley D. McCalla
State Bar No. 13354000
100 Congress Avenue, Suite 1100
Austin, Texas 78701
(512) 236-2000
(512) 236-2002 - Fax
12051448v.1 124965/00019
NO.
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS
AUSTIN, TEXAS
IN RE TELADOC, INC.
Relator.
PETITION FOR TEMPORARY INJUNCTIVE RELIEF
TO THE HONORABLE THIRD COURT OF APPEALS:
COMES NOW Teladoc, Inc.(“Teladoc”) and submits its Petition for
Temporary Injunctive Relief pursuant to TEX. GOV’T CODE 22.221(a) and TEX. R.
APP. 52, and as grounds therefor would show as follows:
PETITION FOR TEMPORARY INJUNCTIVE RELIEF - Page 1
12051448v.1 124965/00019
Identity of Parties and Counsel
Pursuant to Texas Rule of Appellate Procedure 52.3, Relator Teladoc, Inc.
(“Teladoc”) provides this list of all parties and the names and addresses of all
counsel:
Relator Real Party in Interest
Teladoc,Inc Texas Medical Board
Counsel for Teladoc: Counsel for Real Party in Interest:
Matt Dow Ted Ross
Dudley D. McCalla Assistant Attorney General
Jackson Walker L.L.P. Office of the Attorney General of Texas
100 Congress Avenue, Suite 1100 Administrative Law Division
Austin, Texas 78701 P. O. Box 12548, Capitol Station
Austin, Texas 78701
Respondent:
Judge of the 53rd District Court
Travis County, Texas
1000 Guadalupe Street
Austin, Texas 78701
(All judges of Travis County Civil
District Courts preside in all such
Courts)
PETITION FOR TEMPORARY INJUNCTIVE RELIEF - Page 2
12051448v.1 124965/00019
TABLE OF CONTENTS
NAME OF ALL PARTIES AND COUNSEL .............................................. 2
TABLE OF CONTENTS ................................................................................ 3
INDEX OF AUTHORITIES.......................................................................... 4
STATEMENT OF THE CASE ...................................................................... 5
STATEMENT OF JURISDICTION.............................................................. 6
ISSUES PRESENTED................................................................................... 6
STATEMENT OF FACTS ............................................................................ 6
ARGUMENT ................................................................................................. 8
PRAYER ........................................................................................................ 8
CERTIFICATION ......................................................................................... 9
CERTIFICATE OF SERVICE ..................................................................... 10
APPENDIX: ................................................................................................. 11
PETITION FOR TEMPORARY INJUNCTIVE RELIEF - Page 3
12051448v.1 124965/00019
INDEX OF AUTHORITIES
CASES
Teladoc, Inc. v. TMB and Nancy Leshikar, in her Official
Capacity as General Counsel of the Texas Medical
Board, Cause No. D-1-GN-11-002115 In the District
Court of Travis County, No. 03-13-00211-CV in the
Texas Court of Appeals, Third District, at Austin ................ Passim
STATUTES AND CODES
TEX. GOV’T CODE § 2001.023 ................................................................. 7
TEX. GOV’T CODE § 2001.024 ................................................................. 7
TEX. GOV’T CODE § 2001.029 ................................................................. 7
TEX. GOV’T CODE § 2001.033 ................................................................. 7
TEX. GOV’T CODE § 2001.034 ................................................................. 7
TEX. GOV’T CODE § 2001.035 ................................................................. 7
TEX. GOV’T CODE § 2001.038 ......................................................... 5, 6, 8
TEX. ADMIN. CODE CH. 174 ..................................................................... 7
TEX. ADMIN. CODE § 190.8(1)(L)(1)(ii)................................................ 5, 7
OTHER AUTHORITIES
F. Scott McCown, Opinion on Temporary Injunction,
1 Tex. Admin. L.J. 16, 27-30 (1992)................................... Appx. 6
PETITION FOR TEMPORARY INJUNCTIVE RELIEF - Page 4
12051448v.1 124965/00019
STATEMENT OF THE CASE
This case results from action of the Texas Medical Board (“TMB”) adopting
an emergency rule on January 16, 2015, amending Rule 190.8(1)(L). (Appx. 1)
According to the TMB order adopting the rule,
“The Board further determined that the December 31,
2015 [sic] ruling by the Third Court of Appeals [in Cause
No. 03-13-00211] created an absence of such parameters
and requirements, thereby allowing practitioners the
ability to prescribe drugs, without ever seeing a patient;
thus resulting in imminent peril to public health, safety
and welfare.” (Appx. 2, Full Board Order)
Relator Teladoc filed suit on January 20, 2015 and the Hon. Gisela Triana,
sitting as judge of the 53rd District Court, entered a temporary restraining order on
January 20, 2015, and set hearing for temporary injunction for February 2, 2015.
(Appx. 3) Judge Triana, joined by Teladoc, thereafter executed a Motion to
Transfer Cause No. D-1-GN-15-000238 to this Honorable Court pursuant to Tex.
Gov’t Code § 2001.038(f). That Motion to Transfer is submitted to this Honorable
Court today.
The trial judge’s action granting the TRO and executing the Motion to
Transfer were and are correct: Relator seeks to enjoin further proceedings in the
District Court in Cause NO. D-1-G-15-000238 to protect and enforce the
jurisdiction of this Honorable Court in that cause upon transfer of that cause
pursuant to Tex. Gov’t Code § 2001.038(f).
PETITION FOR TEMPORARY INJUNCTIVE RELIEF - Page 5
12051448v.1 124965/00019
STATEMENT OF JURISDICTION
This Court has jurisdiction of this Petition under TEX. GOV’T CODE
§ 21.221(a) and TEX. GOV’T CODE § 2001.038(f).
ISSUES PRESENTED
1. Whether the TMB’s Emergency Rule Adopted January 16, 2015, is a Valid
Rule.
2. Should the 53rd District Court of Travis County Conduct a Hearing on
Temporary Injunction or Further Proceedings in Cause No. D-1-GN-15-
000238 Following Transfer of That Action to This Honorable Court.
STATEMENT OF FACTS
On January 16, 2015, the TMB adopted an emergency rule designed to
prohibit Teladoc physicians from providing to thousands of Texas residents the
services Teladoc has been providing to those citizens for approximately nine years,
with knowledge of the TMB. (See Appx. 1 and 2) By memorandum of
January 23, 2015, TMB’s General Counsel initially advised the Emergency Rule
“was effective on January 16, 2015 and will be in effect for 120 days.” By
subsequent memorandum of that date, TMB’s General Counsel advised the
PETITION FOR TEMPORARY INJUNCTIVE RELIEF - Page 6
12051448v.1 124965/00019
emergency Rule was not currently in effect or being enforced in light of the
Temporary Restraining Order issued on January 20, 2015. (Appx. 4)
TMB adopted the emergency rule without complying with TEX. GOV’T
CODE §§ 2001.023, 2001.024, 2001.029, 2001.033, 2001.034, or 2001.035 thereby
depriving Teladoc and other members of the public of any opportunity to comment
on the emergency rule prior to adoption.
TMB has not agreed to extend the temporary restraining order entered in
Cause No. D-1-GN-15-000238 despite having done so in Cause No. D-1-GN-11-
002115, the previous litigation which resulted in the judgment of this Honorable
Court on December 31, 2014, in No. 03-13-00211-CV. (Appx. 5)
Also on or about January 15, 2015 TMB staff drafted “potential”
amendments to Rule 174 (See Appx. 1). By memorandum of January 16, 2015,
TMB General Counsel indicated the Emergency Rule to 190.8 and potential
amendment to Rule 174 will be presented to the Texas Medical Board at meetings
on February 12 and 13 for consideration for publication and comment according to
the “regular” rulemaking process (Id.)
Whether TMB will pursue this “regular” rulemaking process is unknown;
any suggestion that an imminent peril or emergency existed between January 16,
2015, and the indicated “regular” rulemaking is beyond arbitrary and capricious.
PETITION FOR TEMPORARY INJUNCTIVE RELIEF - Page 7
12051448v.1 124965/00019
This Honorable Court has jurisdiction of the Motion to Transfer submitted
contemporaneously with this Petition for Temporary Injunctive Relief. The
hearing on temporary injunction scheduled for February 2, 2015, would interfere
with this Court’s exercise of jurisdiction over the action to be transferred pursuant
to Tex. Gov’t Code § 2001.038(f) and should be enjoined.
ARGUMENT
TMB’s Emergency Rule is invalid. (See Appx. 6) Cause NO. D-1-GN-15-
000238 should be transferred to this Court. Proceeding with temporary injunction
hearing on February 2, 2015 will interfere with the jurisdiction of this Honorable
Court. There was and is no emergency or imminent peril justifying the emergency
rule. TMB has been aware of Teladoc’s services for approximately nine years
without pursuing proper rulemaking under the Administrative Procedures Act.
PRAYER
WHEREFORE PREMISES CONSIDERED, Teladoc, Inc. prays this
Honorable Court grant the Motion to Transfer submitted this date and issue its
injunction to protect its jurisdiction by enjoining the Judge of the 53 rd District
Court of Travis County, Texas from proceeding with hearing on temporary
injunction on February 2, 2015 or with other proceedings in Cause No. D-1-GN-
15-000238 until further order of this Honorable Court.
PETITION FOR TEMPORARY INJUNCTIVE RELIEF - Page 8
12051448v.1 124965/00019
Teladoc, Inc. prays for such other and further relief to which it justly may be
entitled.
CERTIFICATION
I, Dudley D. McCalla, certify I have reviewed this Petition for Temporary
Injunctive Relief and concluded that every factual statement in the Petition is
supported by competent evidence included in the appendix.
Respectfully submitted,
JACKSON WALKER L.L.P.
By: /s/ Dudley D. McCalla
Dudley D. McCalla
State Bar No. 13354000
Matt Dow
State Bar No. 06066500
100 Congress, Suite 1100
Austin, TX 78701
(512) 236-2000
(512) 236-2002 - Fax
ATTORNEYS FOR TELADOC,
INC.
PETITION FOR TEMPORARY INJUNCTIVE RELIEF - Page 9
12051448v.1 124965/00019
CERTIFICATE OF SERVICE
This is to certify that on this 27th day of January, 2015, a true and correct
copy of the foregoing document was served by fax and email on the parties listed
below:
Ted Ross
Office of the Attorney General of Texas
P.O. Box 12548
Austin, Texas 78711-2548
Fax: 512-474-1062
Attorney for TMB
_/s/ Dudley D. McCalla______
Dudley D. McCalla
PETITION FOR TEMPORARY INJUNCTIVE RELIEF - Page 10
12051448v.1 124965/00019
NO.
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS
AUSTIN, TEXAS
IN RE TELADOC, INC.
Relator.
APPENDIX TO PETITION FOR TEMPORARY
INJUNCTIVE RELIEF
1. Texas Medical Board General Counsel Memorandum of January 16, 2015,
with attachment
2. Board Order of January 16, 2015
3. Temporary Restraining Order in No. D-1-GN-15-000238
4. Texas Medical Board General Counsel Memoranda of January 23, 2015
5. Judgment of this Court in No. 03-13-00211-CV
6. Scott McCown Opinion
APPENDIX - Page 1
12051448v.1 124965/00019
7. TEX. GOV’T CODE §§ 2001.023
8. TEX. GOV’T CODE §§ 2001.024
9. TEX. GOV’T CODE §§ 2001.029
10. TEX. GOV’T CODE §§ 2001.033
11. TEX. GOV’T CODE §§ 2001.034
12. TEX. GOV’T CODE §§ 2001.035
13.. TEX. GOV’T CODE §§ 2001.038
APPENDIX - Page 2
12051448v.1 124965/00019
APPENDIX 1
TEXAS MEDICAL BOARD
TO: Telemedicine Stakeholders
Interested Parties
FROM: Scott Freshour, General Counsel
DATE: January 16,2015
SUBJECT: Texas Medical Board's Notification of an Emergency Rule
Dear Telemedicine Stakeholders and Interested Parties:
Today the Texas Medical Board (Board) adopted an amendment on an emergency basis to Rule
190.8(l)(L), relating to Violation Guidelines. The purpose of the emergency amendment is to
protect the public health and welfare by clarifying that a face-to-face visit or in-person evaluation is
required before a practitioner can issue a prescription for drugs. Attached is a copy of Rule
190.8(1 )(L), as amended. This emergency rule is effective immediately. The same version of the
rule will proceed through the regular rulemaking process.
Please know that in adopting this emergency rule, the Board was cognizant of the input from the
Telemedicine Stakeholders concerning Rule 174 related to the issue of an "established medical site"
and the provision of mental health services. In response to this input, Board Staff has drafted
potential amendments to Rule 174, which are also included as an attachment for your review.
The two rules, 190.8(l)(L) and 174, will be presented at the February 12 and 13, 2015 Board
meeting for consideration for publication and comment according to the regular rulemaking process.
Board Staff has endeavored to make the two rules compatible to ensure patient safety while allowing
greater access to mental health services via telemedicine.
The Board looks forward to your input on these issues.
C: Mari Robinson, Executive Director
Location Address: Mailing Address Phone 512.305.7010
333 Guadalupe, Tower 3, Suite 610 MC-251, P.O. Box 2018 Fax 512.305.7051
Austin, Texas 78701 Austin, Texas 78768-2018 www.tmb.state.tx.us
TEXAS MEDICAL BOARD RULES
Texas Administrative Code, Title 22, Part 9
Proposed Changes- Emergency Rule
Chapter 190 Proposed to Board
Disciplinary Guidelines
Page 1 of 2
190.8 Violation Guidelines. When substantiated by credible evidence, the following acts,
practices, and conduct are considered to be violations of the Act. The following shall not be
considered an exhaustive or exclusive listing.
(1) Practice Inconsistent with Public Health and Welfare. Failure to practice in an acceptable
professional manner consistent with public health and welfare within the meaning of the
Act includes, but is not limited to:
(A)- (K) no change
(L) prescription of any dangerous drug or controlled substance without first
establishing a [proper professional] defined physician-patient relationship[-wi-tft
the patient].
(i) A [proper] defined physician-patient relationship must include, at a
minimum[ requires]:
(I) establishing that the person requesting the medication is in fact
who the person claims to be;
(II) establishing a diagnosis through the use of acceptable medical
practices[ such as], which includes documenting and performing:
(-a-) patient history[,}~
(-b-) mental status examination[,}~
(-c-) physical examination that must be performed by either
a face-to-face visit or in-person evaluation as defined in
Section 174.2(3) and (4) of this title[;}. The requirement for
a face-to-face or in-person evaluation does not apply to
mental health services, except in cases ofbehavioral
emergencies, as defined by Texas Health and Safety Code,
Section 415.253; and
(-d-) appropriate diagnostic and laboratory testing.
@An online questionnaire or questions and answers exchanged
through email, electronic text, or chat or telephonic evaluation of
or consultation with a patient are inadequate to establish a defined
physician-patient relationship[ by questionnaire is inadequate];
([IJ.ijiV) discussing with the patient the diagnosis and the evidence
for it, the risks and benefits of various treatment options; and
([P.qV) ensuring the availability of the licensee or coverage of the
patient for appropriate follow-up care.
Remainder of rule unchanged
§174.1. Purpose.
Pursuant to §153.001 and §157.001 ofthe Medical Practice Act, the Board is authorized to adopt
rules relating to the practice of medicine. This chapter is promulgated to establish standards for
the use of the Internet and the provision of telemedicine medical services by physicians who are
licensed to practice medicine in this State. This chapter does not apply to out-of-state
telemedicine licenses issued by the Board pursuant to §151.056 ofthe Act and §172.12 of this
title (relating to Out-of-State Telemedicine License), federally qualified health centers (FQHCs),
or to consultations provided by health insurance help lines.
§174.2. Definitions.
The following words and terms, when used in this chapter shall have the following meanings
unless the context indicates otherwise.
(1) Distant site provider--A physician or a physician assistant or advanced practice nurse who is
supervised by and has delegated authority from a licensed Texas physician, who uses
telemedicine to provide health care services to a patient in Texas. Distant site providers must be
licensed in Texas.
(2) Established medical site--A location where a patient will present to seek medical care where
there is a patient site presenter and sufficient technology and medical equipment to allow for an
adequate physical evaluation, as appropriate for the patient's presenting complaint. It requires
establishing a defined physician-patient relationship, as defined by §190.8(1)(L) of this title. A
patient's private home is not considered an established medical site, e)ccept when the care
provided to the patient is limited to mental health services except as provided in §174.6(d).
(3) 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.
(4) In-person evaluation--A patient evaluation conducted by a provider who is at the same
physical location as the location of the patient.
(5) Medium--Any mechanism of information transfer including electronic means.
(6) Patient site location--The patient site location is where the patient is physically located.
(7) Patient site presenter--The patient site presenter is the individual at the patient site location
who introduces the patient to the distant site physician for examination and to whom the distant
site physician may delegate tasks and activities. A patient site presenter must be:
(A) licensed or certified in this state to perform health care services or a qualified mental
health professional-community services (QMHP-CS) as defined in 25 TAC
§412.303(48); and
(B) delegated only tasks and activities within the scope of the individual's licensure or
certification.
(8) Person--An individual unless otherwise expressly made applicable to a partnership,
association, or corporation.
(9) Physician-patient e-mail--An interactive communication via an interactive electronic text
messaging system between a physician, or their medical staff, and patients within a professional
relationship in which the physician has taken on an explicit measure of responsibility for the
patient's care.
(1 0) Telemedicine medical service--The practice of medical care delivery, initiated by a distant
site provider, who is physically located at a site other than the site where the patient is located,
for the purposes of evaluation, diagnosis, consultation, or treatment which requires the use of
advanced telecommunications technology that allows the distant site provider to see and hear the
patient in real time.
(11) Group or Institutional Setting- includes, but is not limited to, residential treatment
facilities, half-way houses, jails, nursing homes, group homes, rehabilitation centers, and
assisted living facilities.
§174.3. Telemedicine Medical Services.
(a) All physicians that use telemedicine medical services in their practices shall adopt protocols
to prevent fraud and abuse through the use of telemedicine medical services. These standards
must be consistent with those established by the Health and Human Services Commission
pursuant to §531.02161 ofthe Government Code.
(b) In order to establish that a physician has made a good faith effort in the physician's practice
to prevent fraud and abuse through the use of telemedicine medical services, the physician must
implement written protocols that address the following:
( 1) authentication and authorization of users;
(2) authentication of the origin of information;
(3) the prevention of unauthorized access to the system or information;
(4) system security, including the integrity of information that is collected, program
integrity, and system integrity;
(5) maintenance of documentation about system and information usage;
(6) information storage, maintenance, and transmission; and
(7) synchronization and verification of patient profile data.
§174.5. Notice to Patients.
(a) Privacy Practices.
(1) Physicians that communicate with patients by electronic communications other than
telephone or facsimile must provide patients with written notification of the physicians'
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.
(2) 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.
(b) Limitations of Telemedicine. Physicians who use telemedicine medical services must, prior
to providing services, give their patients notice regarding telemedicine medical services,
including the risks and benefits of being treated via telemedicine, 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.
(c) Necessity of In-Person Evaluation. When, for whatever reason, the telemedicine 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 medicine at an acceptable level of safety and quality in the context of that particular
medical encounter, then the distant site provider must make this known to the patient prior to the
conclusion of the live telemedicine encounter and advise and counsel the patient, prior to the
conclusion f the live telemedicine encounter, regarding the need for the patient to obtain an
additional i -person medical evaluation reasonably able to meet the patient's needs.
(d) Compla nts to the Board. Physicians that use telemedicine medical services must provide
notice of h w patient~ may file a complaint with the Board on the physician's website or with
informed co sent materials provided to patients prior to rendering telemedicine medical services.
Written con ent and method of the notice must be consistent with § 178.3 of this title (relating to
Complaint rocedure Notification).
§174.6. Tel medicine Medical Services Provided at an Established Medical Site.
(a) Teleme icine medical services provided at an established medical site may be used for all
patient visi s, including initial evaluations to establish a proper defined physician-patient
relationship between ~ distant site provider and a patient.
(b) For ne conditions, a patient site presenter must be reasonably available onsite at the
established edical site to assist with the provision of care. It is at the discretion of the distant
site physici if a patient site presenter is necessary for follow-up evaluation or treatment of a
previously iagnosed condition.
(1) distant site provider may delegate tasks and activities to a patient site presenter
duri g a patient encounter.
(2) distant site provider delegating tasks to a patient site presenter shall ensure that the
pati nt site presenter to whom delegation is made is properly supervised.
(c) If the o ly services provided are related to mental health services, a patient site presenter is
not require , except in cases of behavioral emergencies, as defined by Texas Health and
Safe Cod Section 415.253
ter the followin shall be considered to be an established
(1) _he patient's home, including a group or institutional setting where the patient
is a resident, if the medical services being provided in this setting are limited to
mental health services;
(2) For medi~al services, other than mental health services, to be provided at the
pati~nt's home, including a group or institutional setting where the patient is a
resident, the ~ollowing requirements must be met:
(A) a patient site presenter is present;
(B) there is a defined physician-patient relationship as set out in Section
174.8 of this title:
(C) the patient site presenter has sufficient communication and remote
medical diagnostic technology to allow the physician to carry out an adequate
physical examination appropriate for the patient's presenting condition while seeing
and hearing the patient in real time. All such examinations will be held to the same
standard of acceptable medical practices as those in traditional clinical settings; and
(D) An online questionnaire or questions and answers exchanged through
email, electronic text, or chat or telephonic evaluation of or consultation with a
patient do not meet the requirements for subsection (C).
§174.7. Telemedicine Medical Services Provided at Sites other than an Established Medical
Site.
(a) A distant site provider who provides telemedicine medical services at a site other than an
established medical site for a patient's previously diagnosed condition must either:
(1) see the patient one time in a face-to-face visit before providing telemedicine medical
care; or
(2) see the patient without an initial face-face to visit, provided the patient has received
an in-person evaluation by another physician who has referred the patient for additional
care and the referral is documented in the medical record.
(b) Patient site presenters are not required for pre-existing conditions previously diagnosed by a
physician through a face-to-face visit.
(c) All patients must be seen by a physician for an in-person evaluation at least once a year.
(d) Telemedicine medical services may not be used to treat chronic pain with scheduled drugs at
sites other than medical practice sites.
(e) A distant site provider may treat an established patient's new symptoms which are unrelated
to a patient's preexisting condition provided that the patient is advised to see a physician in a
face-to-face visit within 72 hours. A distant site provider may not provide continuing
telemedicine medical services for these new symptoms to a patient who is not seen within 72
hours. If a patient's symptoms are resolved within 72 hours, such that continuing treatment for
the acute symptoms is not necessary, then a follow-up face-to-face visit is not required.
§174.8. Evaluation and Treatment of the Patient.
(a) Evaluation of the Patient. Distant site providers who utilize telemedicine medical services
must ensure that a proper defined physician-patient relationship is established which at a
minimum includes:
(1) establishing that the person requesting the treatment is in fact who the person hefshe
claims to be;
(2) establishing a diagnosis through the use of acceptable medical practices, including
documenting and performing patient history, mental status examination, and physical
examination that must be performed as part of a face-to-face or in-person
evaluation as defined in Section 174.2(3) and (4) of this title. The requirement for a
face-to-face or in-person evaluation does not apply to mental health services, except
in cases of behavioral emergencies, as defined by Texas Health and Safety Code,
Section 415.253, 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;
(3) discussing with the patient the diagnosis and the evidence for it, the risks and benefits
of various treatment options; and
(4) ensuring the availability of the distant site provider or coverage of the patient for
appropriate follow-up care.
(b) 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
acceptable medical practices as those in traditional in-person clinical settings.
(c) An online questionnaire or questions and answers exchanged through email, electronic
text, or chat or telephonic evaluation of or consultation with a patient are inadequate to
establish a defined physician-patient relationship. An on line or telephonic evaluation solely
by questionnaire does not constitute an acceptable standard of care.
§174.9. Technology and Security Requirements.
(a) At a minimum, advanced communication technology must be used for all patient evaluation
and treatment conducted via telemedicine.
(b) Adequate security measures must be implemented to ensure that all patient communications,
recordings and records remain confidential.
(c) Electronic Communications.
(1) Written policies and procedures must be maintained when using electronic mail for
physician-patient communications. Policies must be evaluated periodically to make sure
they are up to date. Such policies and procedures must address:
(A) privacy to assure confidentiality and integrity of patient-identifiable
information;
(B) health care personnel, in addition to the physician, who will process
messages;
(C) hours of operation and availability;
(D) types of transactions that will be permitted electronically;
(E) required patient information to be included in the communication, such as
patient name, identification number and type of transaction;
(F) archival and retrieval; and
(G) quality oversight mechanisms.
(2) All relevant patient-physician e-mail, as well as other patient-related electronic
communications, must be stored and filed in the patient's medical record.
(3) Patients must be informed of alternative forms of communication for urgent matters.
§174.10. Medical Records for Telemedicine Medical Services.
(a) Medical records must be maintained for all telemedicine medical services. Both the distant
site provider and the patient site presenter must maintain the records created at each site unless
the distant site provider maintains the records in an electronic health record format.
(b) Distant site providers must obtain an adequate and complete medical history for the patient
prior to providing treatment and must document this in the medical record.
(c) Medical records must include copies of all relevant patient -related electronic
communications, including relevant patient-physician e-mail, prescriptions, laboratory and test
results, evaluations and consultations, records of past care and instructions. If possible,
telemedicine encounters that are recorded electronically should also be included in the medical
record.
§174.11. On-can Services.
Physicians, who are of the same specialty and provide reciprocal services, may provide on-call
telemedicine medical services for each other's active patients.
§174.12. State Licensure.
Physicians who treat and prescribe through advanced communications technology are practicing
medicine and must possess appropriate licensure in all jurisdictions where their patients presently
reside. An out-of-state physician may provide episodic consultations without a Texas medical
license, as provided in Texas Occupations Code, § 151.056 and§ 172.12(±) of this title (relating to
Out-of-State Telemedicine License-Exemptions).
APPENDIX2
THE TEXAS MEDICAL BOARD
ORDER ADOPTING
EMERGENCY RULE
22 Texas Administrative Code
Chapter 190.8(1 )(L)(i)(II)
Violation Guidelines
The Texas Medical Board (Board) adopts an amendment on nn emergency basis to Chapter 190,
relating to Disciplinary Guidelines, 190.8, Violation Guidelines.
The Board adopts an amendment on an emergency basis to Chapter 190, relating to Disciplinary
Guidelines, Rule190.8, Violation Guidelines. The emergency amendment to Rulel90.8 adds
language to paragraph (l)(L) in order to clarify a "defined physician-patient relationship" and the
requirements for establishing same before prescribing drugs. The amendment clearly defines the
minimum elements that are required to establish a defined physician-patient relationship. The
elements include a physical examination that must be performed either by a face-to-face visit or
an in-person evaluation, as those terms are defined under existing board rules.
Rule 190.8( 1)(L) was originally challenged by Teladoc in State District Court in Travis County,
Texas. Teladoc claimed that a Jun~ 2011 letter, from Nancy Leshikar (former Oeneral Counsel of
the Board) to Teladoc, stating that Teladoc's: business model of providing medical services,
including prescribing medications/drugs without establishing a physician-patient relationship
through a face-to-face visit, was in violation of Rule 190.8(1)(L), constituted improper
rulemaking and was invalid. The State District found in favor of the Board and determined that
the June 2011 letter was a restatement of long-standing law and policy of the Board. Teladoc
appealed the District Court ruling to the Texas Court of Appeals, Third District, under Cause No.
03-13-00211-CV, Teladoc, Inc., Appellant.vs. Texas Medical Board and Nancy Leshikar, in her
Qfficial Capacity as General Counsel of the Texas Medical Board, Appellees. Again, Teladoc
claimed that a June 2011 letter, from Nancy Leshikar (former General Counsel of the Board) to
Teladoc, constituted improper rule making nnd was invalid, as it was not properly promulgated
under the Texas Government Code. On December 31, 2014, the Third Court of Appeals ruled
that the June 2011 letter interpreting Board Rule 190.8(1)(L)(i)(Il) indeed constituted improper
rulemaking and was invalid.
The amendment is adopted on an emergency basis under §2001.034 of the Texas Government
Code. The Board has determined that; in order to protect the public health and welfare, it is vital
to establish a defined physician-patient relationship before prescribing drugs. The Board further
determined that the December 31', 2015 rulin~ by the Third Court of Appeals created an absence
of such parameters and requirements, thereby allowing practitioners the ability to prescribe
drugs, without ever seeing a patient; thus resulting in imminent peril to public health, safety and
welfare.
The Board finds that prescribing drugs to a patient without first evaluating and examining the
patient in a face-to-face visit or in-person eval,uation makes it impossible for a practitioner to
insure proper and accurate diagnosis and treatment; to insure proper prescribing practices are
followed; to insure the drugs pr~scribed are therapeutic, i.e., the medications prescribed are
actually needed and/or proper for the condition (which has never been verified by an in-person
evaluation or face-to-face visit); and/or prevent overuse/abuse of drugs of any kind.
The absence of a required defined physician-p.atient relationship further results in a complete
lack of review of patient records and allows a patient with a subjective complaint, not verified, to
simply call any practitioner and receive a prescription drug without an in-person evaluation or
face-to-face visit. This significantly Increases the risk of misdiagnosis, mismanagement of
patients, over-prescribing, inappropriate prescribing, drug diversion and drug abuse. Even with
drugs, such as antibiotics, there is an immediate threat of incorrect and injudicious antibiotic use,
which can result in bacterial overgrowth that thereby lead to the "superbugs, such as MRSA and
other antibiotic resistant organisms.
Prescribing drugs without a face-to-face visit or in-person evaluation is not the generally
accepted medical practice and does not meet the standard of care. Without requirements for a
practitioner to examine and evaluate a patient, by a face-to-face visit or in-person evaluation,
prior to prescribing drugs, seriously compromises and undermines the Board's statutory mandate
to protect the public health and welfare.
The amendment to Rule 190.8(1)(1) insures patient safety by setting forth specific parameters
and requirements for a practitioner to ·establish a defined physician-patient relationship prior to
prescribing drugs and, thereby, remove::; the ptirtent imminent peril to the public health, safety
and welfare. The amendment to· Rule 190.8(1)(1) will protect patient health and safety by
requiring the use of acceptable medical practices that comply With state law and medical board
rules, while still providing ample access to medical treatment, via traditional meqicirie or
telemedicine. ·
This amendment to Rule 190.8(1 )(1) does not expand the requirements for treating patients, via
traditional medicine or telemedicine, but rather, clarifies existing requirements for prescribing
and is consistent with the board's existin'g rules related to acceptable medical pJ1!.ctices, the
current requirements for medical record documentation of patient evaluations and examinations,
.
and existing requirements for the practice of telemedicine.
.
Based on the Third Court of Appeal's ruling, on January 16, 2015, at an emergency meeting of
the Board, the Board adopted an amendment to Ru1e190.8(1)(1) relating to Violation Guidelines,
to be effective immediately. The Notice of Adoption and emergency Rule 190.8(1)(1) were filed
with the Secretary of State on January 16, 20'15 to be published in the Texas Register.
The amendment is adopted on an emergency basis under §2001.034 of the Texas Government
Code and under the authority ofTexas Occupations Code Annotated, §§153.001, which provides
authority for the Board to adopt rules and bylaws as necessary to govern its own proceedings,
perform its duties, regulate the practice· of medicine in this state, and enforce this subtitle.
. . '. I .
The Board certifies that the emergency udop~ion o.f the proposed rules has been reviewed by
legal counsel and found to be a valid exercise of the agency's legal authority.
lt is therefore ORDERED by the Board that the proposed rules are ADOPTED on an emergency
basis, as stated above. A copy of the ameJ1ded. rule:; is incorporated in this ORDER.
Signed and entered as of January 16, 2015.
APPENDIX3
Cause No. D-1-GN-15-000238
TELADOC, INC., § IN THE DISTRICT COURT
Plaintiff, §
v. § 53rd JUDICIAL DISTRICT
§
TEXAS MEDICAL BOARD, §
Defendant. § TRAVIS COUNTY, TEXAS
TEMPORARY RESTRAINING ORDER
On this day, the Court heard the application for temporary restraining order of Plaintiff,
Teladoc, Inc. Plaintiff and Defendant appeared by and through their attorneys of record. After
considering the pleadings, the affidavit and attachments in support of the pleadings, and the
argument of counsel, the Court is of the opinion that the application for a temporary restraining
order should be granted for the following reasons: (i) in accordance with Tex. Gov't. Code §
2001.038, Plaintiff has asserted a valid cause of action for declaratory relief with regard to the
invalidity of the Texas Medical Board's emergency amendment to, 22 T.A.C. 190.8(1)(L) as set
out in the General Counsel's memo of January 16, 2015; (ii) Plaintiff has shown a probable right
to a judgment because no imminent peril to public health, safety or welfare exists and Defendant
did not follow the requirements of Texas Administrative Procedure Act (AP A) § 200 1.034(a)(l )-
(2), (b), and (d) and so therefore the rule is invalid; and (iii) Plaintiff will suffer immediate and
irreparable harm because the proposed enforcement of the emergency rule will have an
immediate and severe impact on Teladoc's ability to do business in Texas. The Court further
finds that the status quo will be preserved by the entry of this order.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiffs
Application for Temporary Restraining Order be and is hereby GRANTED;
ACCORDINGLY, THE TEXAS MEDICAL BOARD, and its agents, servants,
employees, and attorneys be and hereby are, ARE HEREBY ORDERED to desist and refrain
from implementing, communicating and enforcing the amendments to Rule 190.8(1)(L) as stated
in the memorandum from the Texas Medical Board's General Counsel Scott Freshour dated
January 16, 2015 until further order of this Court.
IT IS FURTHER ORDERED THAT Plaintiff shall execute and file with the clerk of this
Court a bond, or cash deposit in lieu of bond, in the amount of$ 661) D'O in conformity with
Rule 684 of the Texas Rules of Civil Procedure, payable to Defendant and conditioned that
Plaintiff will abide by the decision which may be made in the cause, and that Plaintiff will pay
all sums of money and costs that may be adjudged against it if the temporary restraining order
shall be dissolved in whole or in part.
The clerk shall forthwith, when so requested by Plaintiff and after Plaintiff has filed the
bond described above, issue a writ of temporary restraining order in conformity with the law and
the terms of this Order.
IT IS FURTHER ORDERED that, unless extended by agreement of the parties or
changed by further order of this Court, this Order become effective only at such time as Teladoc
files with the clerk of this court a bond in the amount of$ s~ a-o
IT IS FURTHER ORDERED that Plaintiffs application for a temporary injunction will
be heard before this court on ~ , f..,~ ;l., 2015, at 'l: lfo o'clock
fA..m.
IT IS FURTHER ORDERED that this order expires no later than fourteen days after
issuance or until earlier amended by order of the Court, whichever occurs first.
Signedandissuedthis :2.0 dayofJanuary,2015,at5:43o•clock t:L.m.
~,_,~.``
JUDGE PRESIDING
1201814lv.J
2
APPENDIX4
TEXAS MEDICAL BOARD
TO: Telemedicine Stakeholders
Interested Parties
FROM: Scott Freshour, General Counsel
DATE: January 23,2015
SUBJECT: Requesting your Comments on Rules 190.8(l)(L) and 174.
Dear Telemedicine Stakeholders and Interested Parties:
As you know, the Texas Medical Board ("the Board") had an emergency meeting on January 16,
2015 adopting an amendment to Rule 190.8(l)(L). This rule was effective on January 16, 2015 and
will be in effect for 120 days.
In the notice TMB provided on January 16, 2015 regarding the emergency rule, you were also
furnished two proposed rules, 190.8(1 )(L) and several sections of 174 (telemedicine rules). These
rules will be considered for publication and comment at the February 12-13 Board meeting. If you
wish to submit comments to be considered at the February 12-13 Board meeting, such comments
must be submitted by February 6, 2015, to Rita Chapin, Legal Assistant, General Counsel's Office,
Texas Medical Board, P.O. Box 2018, Austin, TX 78768-2018, or e-mail comments to:
rules.development@tmb.state.tx.us.
If the proposed rule is approved for publication by the Board in February, there will be a thirty (30)
day comment period following publication ofthe rules in the Texas Register.
The Board looks forward to your input on these issues.
C: Mari Robinson, Executive Director
Location Address: Mailing Address Phone 512.305.7010
333 Guadalupe, Tower 3, Suite 610 MC-251, P.O. Box 2018 Fax 512.305.7051
Austin, Texas 78701 Austin, Texas 78768-2018 www.tmb.state.tx.us
TEXAS MEDICAL BOARD
TO: Telemedicine Stakeholders
Interested Parties
FROM: Scott Freshour, General Counsel
DATE: January 23,2015
SUBJECT: Clarification on today's earlier communication
Dear Telemedicine Stakeholders and Interested Parties:
The following is a clarification of the memo recently sent to you regarding rules comments. Please
understand that emergency Rule 190.8(1)(L) is not currently in effect or being enforced as the 53rd
Judicial District Court issued a Temporary Restraining Order regarding the rule on January 20, 2015.
The purpose of the prior communication, which was to solicit comments on proposed rules to be
considered at the February 13, 2015 Board meeting, inadvertently omitted information related to the
Temporary Restraining Order.
The Board looks forward to your input at the February Board meeting.
C: Mari Robinson, Executive Director
Location Address: Mailing Address Phone 512.305.7010
333 Guadalupe, Tower 3, Suite 610 MC-251, P.O. Box 2018 Fax 512.305.7051
Austin, Texas 78701 Austin, Texas 78768-2018 www.tmb.state.tx.us
APPENDIX5
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED DECEMBER 31, 2014
NO. 03-13-00211-CV
Teladoc, Inc., Appellant
v.
Texas Medical Board and Nancy Leshikar,
in her Official Capacity as General Counsel of the Texas Medical Board, Appellees
APPEAL FROM 353RD DISTRICT COURT OF TRAVIS COUNTY
BEFORE CHIEF JUSTICE JONES, JUSTICES PEMBERTON AND FIELD
REVERSED AND RENDERED -- OPINION BY JUSTICE PEMBERTON
This is an appeal from the judgment signed by the district court on March 4, 2013. Having
reviewed the record and the parties' arguments, the Court holds that there was reversible error in
the district court's judgment. Therefore, the Court reverses the district court's judgment and
renders summary judgment declaring that Texas Medical Board's pronouncements regarding
Rule 190.8(1)(L)(i)(II) contained in its June 2011 letter are a "rule" under the Administrative
Procedure Act and, therefore, invalid under section 2001.035 of that Act. The appellees shall
pay all costs relating to this appeal, both in this Court and the court below.
APPENDIX6
'-.!1>
NO. 91-14131
financial responsibility could be satisfied by obtaining liability instirance in a
NATIONAL ASSOCIATION OF § IN THE DISTRICT COURT
certain minimum amounl Failure to maintain financial responsibility was a
INDEPENDENT INSURERS, §
ETAL., §
Plaintiffs §
misdemeanor offense. In 1991 the legislature strengthened the law by
v. §
passing the Texas Motor Vehicle Safety-Responsibility Acl Under the
STATE BOARD OF INSURANCE §
Defendant §
§ OF TRAVIS COUNTY, TEXAS amended law, failure to comply with the act was still a misdemeanor, but the
and § /
poSStble fine was increased. More important, proof of financial responsibility
OFFICE OF PUBUC INSURANCE§ :
COUNSEL, §
-------was-made-a prer~uisite-toOOtaining or renewing-vehicle registration, a
§
Defendant-Intervenor §
driver's license, and a safety inspection sticker. The act became effective
and §
COMMITTEE FOR A JUST AUTO§
September 1. Some three million drivers needed to obtain insurance to
INSURANCE, ET AL., §
§
Defendant-Intervenor § 345TH JUDICIAL DISTRICT · comply with the strengthened law.
A hurdle to obtaining insurance for these drivers is an underwriting
OPINION ON TEMPORARY INJUNCTION
guideline of many companies: H you should have had insurance in the past
The Ouestion Presented
and did not, then many companies infer that you are irresponsible and will
Pursuant to the Administrative Procedure and Texas Register Act
not insure you. The State Board of Insurance has promulgated an emergency
(APTRA), TEX. REV. CIV. STAT. ANN. art. 6252-13a, §12 (Vernon Supp.
rule prohibiting the use of this underwriting guideline. At issue in this case is
1991), plaintiffs ask the court to declare invalid an emergency rule adopted by
the validity of the board's rule.
the State Board of Insurance and to temporarily enjoin its enforcement,
Structure of AYfRA
pending a trial on the merits. Because the court finds as a matter of law that
The legislature has delegated certain of its powers to make rules to
there is no emergency, and that the challenged rule addresses more than the
various agencies. Through APTRA the legislature requires those agencies to
emergency cited by the board, the court will grant the relief requested.
follow certain careful, deh"berate procedures before making rules. These
The facts can be briefly stated. In 1981 the legislature passed the Texas
procedures are designed to ensure gOQd rules.
Safety Responsibility Act, which required as a condition of driving certain
financial wherewithal to compensate an accident victim. Evidence of
16 17
(5) a public benefit-cost note showing the name and title of
Section 1 of APTRA declares that it is the public policy of this state to the officer or employee responsible for preparing or approving it and
stating for each year for the first five years that the rule will be in
provide for public participation in rulemaking and to provide adequate public effect;
notice of proposed rules to ensure public participation. Section 5(a) requires (A) the public benefits to be expected as a result of
adoption of the proposed rule; and
thirty days notice of a proposed rule. Section 5(a) further requires that the
(B) the probable economic cost to persons who are
"notice must include:" required to comply with the rule;
/
(1) a brief explanation of the proposed rule; (6) the local employment impact statement prepared under
Section 4A of this Act, if required;
(2) the text of the proposed rule, except any portion.'
omitted as provided in Section 6(c) of this Act, prepared in a (7) a request for comments on the proposed rule from any
manner to indicate the words to be added or deleted from the interested person; and
current text, if any;
(8) any other statement required by law.
(3) a statement of the statutory or other authority under
which the rule is proposed to be promulgated, including a concise Section 5(c) provides an opportunity for the public to be heard:
explanation of the particular statutory or other provisions under
which the rule is proposed, and a certification that the proposed rule (c) Prior to the adoption of any rule, an agency shall afford all
has been reviewed by legal counsel and found to be within the interested persons reasonable opportunity to submit data, views, or
agency's authority to adopt; arguments, orally or in writing. In the case of substantive rules,
opportunity for public hearing must be granted if requested by at
(4) a fiscal note showing the name and title of the officer or least 25 persons, by a governmental subdivision or agency, or by an
employee responsible for preparing or approving it and stating for association having at least 25 members. The agency shall consider
each year for the first five years that the rule will be in effect; fully all written and oral submissions concerning the proposed rule.
On adoption of a rule, the agency, if requested to do so by an
(A) the additional estimated cost to the state and to local interested person either prior to adoption or within 30 days after
governments expected as a result of enforcing or administering the adoption, shall issue a concise statement of the principal reasons for
rule; and against its adoption, incorporating in the statement its reasons
for overruling the considerations urged against its adoption.
(B) estimated loss or increase in revenue to the state or .to
local governments as a result of enforcing or administering the rule; This subdivision does more than merely provide an opportunity to
and
comment; it requires an agency to fully consider all comments. The agency
(C) estimated loss or increase in revenue to the state or to
local governments as a result of enforcing or administering the rule; must even explain why it has rejected any comments.
and
Section 5(c-1) goes further to require that the final order adopting a rule
(D) if applicable, that enforcing or administering the rule
will have no foreseeable implications in any of the preceding include:
respects;
18 19
(1) a reasoned justification of the rule, including a summary of
comments received from parties interested in the rule and showing safety, or welfare. No state or federal law directed the board to promulgate
the names of any interested group or association offering comment
on the rule and whether they were for or against its adoption, and the challenged rule, much less to do so in less than 30 days. At issue then in
also including a restatement of the rule's factual bases and the
reasons why the agency disagrees with party submissions and this case is whether there is "an imminent peril to the public health, safety, or
proposals;
welfare" that justifies the adoption of the challenged rule on an emergency
(2) a concise restatement of the particular statutory provisions
under which the rule is adopted and of how the agency interprets basis.
these provisions as authorizing or requiring the rule; and
Finding an Imminent Peril
(3) a certification that the rule, as adopted, has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal ' Before it makes an emergency rule, an agency must find as a fact that
authority.
there is "an imminent peril to the public health, safety, or welfare". The
This requirement ensures that an agency carefully thinks through both
preamble to the rule must contain that finding. The finding must be more
the policy and the law in support of a rule.
than a mere recitation that there is an imminent peril. Subdivision (d) of
None of this careful, dehoerate process was employed here. Instead, the
section 5 requires an agency to give "its reasons" ·for the fmding. The
board used its emergency authority found in section 5(d), which provides:
legislature requires an agency to state its reasons to force the agency to
(d) If an agency finds that an imminent peril to the public
health, safety, or welfare or a requirement of state or federal law consider whether'there really is an emergency, and to give the judicial branch
requires adoption of a rule on fewer than 30 days' notice and states
in writing its reasons for that finding, it may proceed without prior a means to review an agency's fmding. See Charter Medical-Dallas, Inc. v.
notice or hearing or on any abbreviated notice and hearing that it
finds practicable to adopt an emergency rule. The agency. must set Texas Health Facilities Comm'n, 656 S.W.2d 928, 937 (Tex. App.--Austin
forth the requisite finding in the preamble to the rule. The rule may
be effective for a period of not longer than 120 days renewable once 1983).
for a period not exceeding 60 days, but the adoption of an identical
rule under Subsection (a) and (c) of this section is not precluded. When reviewing a finding, the court should not look beyond the face of
An emergency rule adopted under the provisions of this subsection,
and the agency's written reasons for the adoption, shall be filed in the emergency rule for the reasons supporting the fmding. See Methodist
the office of the secretary of state for publication in the Texas
Register. Hospitals of Dallas v. Texas Industrial Accident Board, 978 S.W.2d 651 (Tex.
An emergency rule can only be promulgated if a state or federal law App.--Austin 1990, no writ). Subdivision (d) requires all reasons to be stated.
expressly directs an agency to promulgate rules by a date less than 30 days No unstated reason can be offered to justify an emergency rule.
from when the law is passed or if there is an imminent peril to public health,
20 21
The court can look beyond the face of the rule for evidence that supports Did the legislature intend for problems such as the problem found by an
the finding, even if it was not before the agency. Particularly in an agency to be addressed by an emergency rule. This is a question
emergency, evidence may be developed that was not originally heard by an appropriately reviewed by the court. Section 12 authorizes the court to
agency. If it confirms the agency's conclusion, then the court should uphold determine the validity of rules, and expressly includes emergency rules.
the rule. The court, however, cannot consider new reasons for finding an Express mention of emergency rules is telling. Plainly the legislature wants
emergency. The court has no authority to fmd an emergency, only an agency the judicial branch to review promulgation of emergency rules.
does. New reasons must be considered by the agency, not the court. While the legislature bas delegated certain of its authority to make rules
After considering whatever evidence supports an agency reason for to agencies, it is distrustful of these agencies. The legislature has therefore
finding an imminent peril, the court must be able to conclude that whatever assigned to its sister branch of government, the judicial branch, the
is factually found can truly be characterized as an imminent peril. Like responsibility to stand watch to make sure agencies that are exercising
negligence, this is a mixed question of law and fact, meaning that it requires authority delegated by the legislature do so only on terms set forth by the
both deciding the facts and evaluating the facts to arrive at a characterization. legislature. Thus the court has a duty to review an agency's finding of
The court must defer to an agency's decision about the facts, as long as it is imminent peril. See River Road Neighborhood Ass'll v. South Texas Sports,
supported by some evidence. 720 S.W.2d 551 (Tex. App.--San Antonio 1986, writ dism'd)(review of
By the same token, deference is owed to an agency's characterization of emergency under Open Meetings Act).
the facts. After all, an agency is expressly authorized to promulgate an When an agency declares an imminent peril it may adopt a rule with no
emergency rule if it finds an imminent peril. In such a case, an agency is notice and no hearing. In the absence of an imminent peril, the agency must
pursuing its mandate within the area of its expertise. The court must not give thirty days notice and a hearing before it adopts a rule. Thus, when the
merely substitute its evaluation for that of the agency. matter is very serious, but something short of an imminent peril, an agency
There are, however, limits. Characterization of a state of affairs as an can still enact a rule within thirty days. In this particular case, even assuming
imminent peril to public welfare is not a question peculiarly within the that providing the full process takes longer than the minimum of thirty days,
expertise of any agency. Moreover, the question is ultimately one of law:
22 23
a rule of the sort before the court could be adopted within sixty to ninety The peril to public welfare cited by the board is the result of House Bill
days. 2, effective September 1, 1991, which strengthens the Motor Vehicle Safety-
Thus, the question is whether the problem that is confronted by the Responsibility Act by adding stiffer penalties and more effective enforcement
board of insurance is so serious that it justifies acting with little notice, a brief tools. Beginning September 1 people who cannot get insurance will be faced
hearing, and little deliberation, or can the public suffer the problem for thirty. with either not driving or driving in violation of the strengthened law. As a
to ninety days while the board provides the adequate notice, full hearing, and result: Some people will choose not to drive. Due to necessity, some people
careful deliberation required by APTRA. Keeping in mind that notice, will drive without liability insurance. Some number of these people will be
hearing and deliberation is required because it produces good rules, the caught. Some number of these people will be punished.
problem identified by the board does not justify the short-cut procedure. Section 10.05 of House Bill 2 sets out the "risk" of enforcement. A ftrst
Here the concern is one of "public welfare." No health or safety concerns conviction is a misdemeanor punishable by a ftne of not less than $175 and
were cited by the board. The danger to the "public welfare" identified by the not more than $350. Any subsequent offense is a misdemeanor punishable
board is that without the emergency rule "there will be a significant segment by a ftne of not less than $350 and not more than $1000. If a person is
of the driving population for which insurance will not be available at an economically unable to pay the ftne. the court may reduce the ftne to less
affordable cost. As a result, some people will remain uninsured and at risk than $175.00. On a second or subsequent conviction, the motor vehicle
under the new enforcement provisions." driven must be impounded for 180 days (6 months) at a cost of $15 a day
Understanding the exact nature of the emergency is the ftrst step in the ($2700). Upon proof of ftnancial responsibility, a vehicle can be released
court's review. The emergency is not that some people will not have liability short of 180 days. In addition, under the amended act a person cannot obtain
insurance and therefore will not be able to compensate accident victims. We or renew vehicle registration, a driver's license, or a safety inspection sticker
have long known that many people do not have liability insurance. This without proof of ftnancial responsibility.
situation is not an imminent peril but a chronic problem that the legislature The results of enforcement will be incremental, not immediate. As a
has been trying to address for years. It is the legislature's most recent step to group, uninsured drivers are not going to suffer much in the ftrst sixty to
solve this problem that the board claims has caused an imminent peril. ninety days under the amended Motor Vehicle Safety-Responsibility Act.
24 25
~
The evidence shows that there are some three million uninsured drivers. Moreover, the hard truth is that this adverse economic impact is the
Many will obtain insurance. Of those who do not, most will not be caught result of the new law itself. Nothing the board can do will significantly
driving without insurance between September 1 and December 1. Of those ameliorate the effect of the law. To the extent the board can do anything, the
caught, fewer will be convicted. Of those convicted, the punishment is not effect of the new law will be so incremental as to give the board time to
steep, particularly for those found unable to pay a fine. Even fewer will be comply with the full procedure of APTRA. Nothing was going to happen so
I
caught twice so that their car is impounded. fast that the board could not have taken thirty to ninety days from September
The court does not intend to minimize what a serious personal proplem 1 to promulgate rules through the full procedure of APTRA. The problem is
the strengthened act presents for those who are caught in violation of its just not an emergency.
provisions, but the court cannot characferize this certainly serious personal Words have both denotations and connotations. Here the board is trying
problem as an imminent peril to public welfare. Significantly, neither the to take a public-policy problem and force it into the denotation we would
board or either defendant-intervenor presented mli evidence at trial that normally give to "imminent peril to the public welfare." But the problem
between September 1 and the conclusion of the trial on October 30, a period does not fit the concept, particularly when one considers the connotation of
of sixty days, enforcement of the act has resulted in actual hardship for any "imminent peril to the public welfare." Those words suggest a soon-to-be-
significant number of people. Indeed, there was almost no evidence of upon-us public disaster, not merely a serious public policy problem.
immediate hardship. The board could not have reasonably expected the new Indeed, if this problem is an imminent peril to public welfare, then
law to actually effect many people within its first ninety days. Over time--yes, almost all public policy problems are imminent perils to public welfare and
immediately--no. can be addressed by the short-cut emergency procedures rather than the full
The Committee for a Just Auto Insurance argues that the Texas Motor deliberative process required by APTRA. Under such reasoning, the more
Vehicle Safety-Responsibility Act will have tremendous adverse economic serious the public policy problem, the less likely it is to get the full
impact on the poor in the Rio Grande Valley. This problem, however, was consideration that the legislature mandates in APTRA. The legislature,
not found by the board as a reason for its finding of an imminent peril. The however, intended full consideration for all but the most serious disasters.
court therefore cannot consider the issue.
26 27
Notice and Hearing
Likewise, a distant problem is not an imminent peril. If the problem is
The board argues that it did provide some notice and hearing. If there is
distant enough to allow for the full procedure of APTRA, then the full
not an imminent peril, however, then nothing short of full compliance with
procedure must be followed.
APTRA is adequate.
As a corollary, an agency cannot allow a qistant problem to become an
To hammer home the importance of full compliance with APTRA,
imminent peril by inaction and then promulgate an emergency rule. If
consider the proceedings that were had. On September.18 the board ftle 1Jriginai l 15. Cfdvernrnc·nt \Vnr!.~.
APPENDIX8
§ 2001.024. Content of Notice, TX GOVT § 2001.024
Vernon's Texas Statutes and Codes Annotated
Government Code (Refs & Annos)
Title 10. General Government (Refs & An nos)
Subtitle A. Administrative Procedure and Practice
Chapter 2001. Administrative Procedure (Refs & Annos)
Subchapter B. Rulemaking
V.T.C.A., Government Code § 2001.024
§ 2001.024. Content of Notice
Currentness
(a) The notice of a proposed rule must include:
( 1) a brief explanation of the proposed rule;
(2) the text of the proposed rule, except any portion omitted under Section 2002.014, prepared
in a manner to indicate any words to be added or deleted from the current text;
(3) a statement of the statutory or other authority under which the rule is proposed to be adopted,
including:
(A) a concise explanation of the particular statutory or other provisions under which the rule
is proposed;
(B) the section or article of the code affected; and
(C) a certification that the proposed rule has been reviewed by legal counsel and found to be
within the state agency's authority to adopt;
(4) a fiscal note showing the name and title of the officer or employee responsible for preparing
or approving the note and stating for each year of the first five years that the rule will be in effect:
§ 2001.024. C ntent of Notic , TX GOVT § 2001.024
(A) th additional estimated cost to the state and to local governments expected as a result
of enfi rcing or ad inistering the rule;
(B) th~ estimated reductions in costs to the state and to local governments as a result of
enforc;ing or admi istering the rule;
(C) the estimated loss or increase in revenue to the state or to local governments as a result
of enfi:~rcing or adtninistering the rule; and
(D) if applicable, that enforcing or administering the rule does not have foreseeable
impliciations relating to cost or revenues of the state or local governments;
(5) a not1e about public benefits and costs showing the name and title of the officer or employee
responsible for prepGtring or approving the note and stating for each year of the first five years
that the rule will be in effect:
(A) t~e public benefits expected as a result of adoption of the proposed rule; and
(B) the probable economic cost to persons required to comply with the rule;
(6) the local employment impact statement prepared under Section 2001.022, if required;
(7) a re9uest for comments on the proposed rule from any interested person; and
(8) any other statement required by law.
(b) In the notice of a proposed rule that amends any part of an existing rule:
(1) the text of the entire part of the rule being amended must be set out;
§ 2001.024. Content of Notice, TX GOVT § 2001.024
(2) the language to be deleted must be bracketed and stricken through; and
(3) the language to be added must be underlined.
(c) In the notice of a proposed rule that is new or that adds a complete section to an existing rule,
the new rule or section must be set out and underlined.
Credits
Added by Acts 1993, 73rd Leg., ch. 268, § 1, efi. Sept. 1, 1993. Amended by Acts 1997, 75th
Leg., ch. 1067, § 1, eff. Sept. 1, 1997.
Notes ofDecisions (14)
V. T. C. A., Government Code§ 2001.024, TX GOVT § 2001.024
Current through the end of the 2013 Third Called Session of the 83rd Legislature
End ofDocurnent 2015 Thomson Hcutcrs. No c!nim to original U5. (iovcrnmcnt \Vt)rks.
APPENDIX9
§ 2001.029. Public Comment, TX GOVT § 2001.029
Vernon's Texas Statutes and Codes Annotated
Government Code (Refs & Annos)
Title 10. General Government (Refs & Annos)
Subtitle A. Administrative Procedure and Practice
Chapter 2001. Administrative Procedure (Refs & An nos)
Subchapter B. Rulemaking
V.T.C.A., Government Code § 2001.029
§ 2001.029. Public Comment
Currentness
(a) Before adopting a rule, a state agency shall give all interested persons a reasonable opportunity
to submit data, views, or arguments, orally or in writing.
(b) A state agency shall grant an opportunity for a public hearing before it adopts a substantive
rule if a public hearing is requested by:
(1) at least 25 persons;
(2) a governmental subdivision or agency; or
(3) an association having at least 25 members.
(c) A state agency shall consider fully all written and oral submissions about a proposed rule.
Credits
Added by Acts 1993, 73rd Leg., ch. 268, § l, eff. Sept. 1, 1993.
Notes ofDecisions (4)
V. T. C. A., Government Code§ 2001.029, TX GOVT § 2001.029
§ 2001.029. Public Comment, TX GOVT § 2001.029
Current through the end of the 2013 Third Called Session of the 83rd Legislature
End nf Hnnunent 20!5 Thomson Reuter•\, No Llaim to original U,S. (J(w,;rnmcnt \Vorks.
APPENDIX 10
§ 2001.033. State Agency Order Adopting Rule, TX GOVT § 2001.033
Vernon's Texas Statutes and Codes Annotated
Government Code (Refs & Annos)
Title 10. General Government (Refs & An nos)
Subtitle A. Administrative Procedure and Practice
Chapter 2001. Administrative Procedure (Refs & Annos)
Subchapter B. Rulemaking
V.T.C.A., Government Code § 2001.033
§ 2001.033. State Agency Order Adopting Rule
Currentness
(a) A state agency order finally adopting a rule must include:
(1) a reasoned justification for the rule as adopted consisting solely of:
(A) a summary of comments received from parties interested in the rule that shows the names
of interested groups or associations offering comment on the rule and whether they were for
or against its adoption;
(B) a summary of the factual basis for the rule as adopted which demonstrates a rational
connection between the factual basis for the rule and the rule as adopted; and
(C) the reasons why the agency disagrees with party submissions and proposals;
(2) a concise restatement of the particular statutory provisions under which the rule is adopted
and of how the agency interprets the provisions as authorizing or requiring the rule; and
(3) a certification that the rule, as adopted, has been reviewed by legal counsel and found to be
a valid exercise of the agency's legal authority.
' '
§ 2001.033. State Agency Order Adopting Rule, TX GOVT § 2001.033
(b) Nothing in this section shall be construed to require additional analysis of alternatives not
adopted by an agency beyond that required by Subdivision (1)(C) or to require the reasoned
justification to be stated separately from the statements required in Subdivision (1).
Credits
Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th
Leg., ch. 558, § 2, eff. Sept. 1, 1999.
Notes ofDecisions (42)
V. T. C. A., Government Code§ 2001.033, TX GOVT § 2001.033
Current through the end of the 2013 Third Called Session of the 83rd Legislature
2015 Thnmson Reuters. No \.:!:tim tP original U.S. Gov. .~rnmcn! \Vorks.
APPENDIX 11
§ 2001.034. Emergency Rulemaking, TX GOVT § 2001.034
Vernon's Texas Statutes and Codes Annotated
Government Code (Refs & Annas)
Title 10. General Government (Refs & An nos)
Subtitle A. Administrative Procedure and Practice
Chapter 2001. Administrative Procedure (Refs & An nos)
Subchapter B. Rulemaking
V.T.C.A., Government Code § 2001.034
§ 2001.034. Emergency Rulemaking
Currentness
(a) A state agency may adopt an emergency rule without prior notice or hearing, or with an
abbreviated notice and a hearing that it finds practicable, if the agency:
(1) finds that an imminent peril to the public health, safety, or welfare, or a requirement of state
or federal law, requires adoption of a rule on fewer than 30 days' notice; and
(2) states in writing the reasons for its finding under Subdivision (1).
(b) A state agency shall set forth in an emergency rule's preamble the finding required by
Subsection (a).
(c) A rule adopted under this section may be effective for not longer than 120 days and may
be renewed once for not longer than 60 days. An identical rule may be adopted under Sections
2001.023 and 2001.029.
(d) A state agency shall file an emergency rule adopted under this section and the agency's written
reasons for the adoption in the office of the secretary of state for publication in the Texas Register
in the manner prescribed by Chapter 2002.
Credits
Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993.
§ 2001.034. Emergency Rulemaking, TX GOVT § 2001.034
V. T. C. A., Government Code§ 2001.034, TX GOVT § 2001.034
Current through the end of the 2013 Third Called Session of the 83rd Legislature
End or Document
APPENDIX 12
§ 2001.035. Substantial Compliance Requirement; Time Limit..., TX GOVT § 2001.035
Vernon's Texas Statutes and Codes Annotated
Government Code (Refs & Annos)
Title 10. General Government (Refs & An nos)
Subtitle A. Administrative Procedure and Practice
Chapter 2001. Administrative Procedure (Refs & An nos)
Subchapter B. Rulemaking
V.T.C.A., Government Code § 2001.035
§ 2001.035· Substantial Compliance Requirement;
Time Limit on Procedural Challenge
Currentness
(a) A rule is voidable unless a state agency adopts it in substantial compliance with Sections
2001.0225 through 2001.034.
(b) A person must initiate a proceeding to contest a rule on the ground of noncompliance with
the procedural requirements of Sections 2001.0225 through 2001.034 not later than the second
anniversary ofthe effective date of the rule.
(c) A state agency substantially complies with the requirements of Section 2001.033 if the agency's
reasoned justification demonstrates in a relatively clear and logical fashion that the rule is a
reasonable means to a legitimate objective.
(d) A mere technical defect that does not result in prejudice to a person's rights or privileges is
not grounds for invalidation of a rule.
Credits
Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th
Leg., ch. 558, § 3, eff Sept. 1, 1999.
Editors' Notes
REVISOR'S NOTE
§ 2001.035. Substantial Compliance Requirement; Time Limit..., TX GOVT § 2001.035
2008 Main Volume
(1) The revised law substitutes "January 1, 1976," for the source law reference to a
rule "hereafter" adopted because the provision became effective on that date.
(2) The source law refers to adoption of a rule "in substantial compliance with this
section."The revised law substitutes "Sections 2001.023-200 1.034" for "this section"
because Section 5 of the source law is revised as Sections 2001.023-2001.034 of this
chapter.
Notes of Decisions (14)
V. T. C. A., Government Code§ 2001.035, TX GOVT § 2001.035
Current through the end of the 2013 Third Called Session of the 83rd Legislature
Fnd of Docunwnt
APPENDIX 13
§ 2001.038. Declaratory Judgment, TX GOVT § 2001.038
Vernon's Texas Statutes and Codes Annotated
Government Code (Refs & Annos)
Title 10. General Government (Refs & An nos)
Subtitle A. Administrative Procedure and Practice
Chapter 2001. Administrative Procedure (Refs & Annos)
Subchapter B. Rulemaking
V.T.C.A., Government Code § 2001.038
§ 2001.038. Declaratory Judgment
Currentness
(a) The validity or applicability of a rule, including an emergency rule adopted under Section
2001.034, may be determined in an action for declaratory judgment if it is alleged that the rule
or its threatened application interferes with or impairs, or threatens to interfere with or impair, a
legal right or privilege of the plaintiff.
(b) The action may be brought only in a Travis County district court.
(c) The state agency must be made a party to the action.
(d) A court may render a declaratory judgment without regard to whether the plaintiff requested
the state agency to rule on the validity or applicability of the rule in question.
(e) An action brought under this section may not be used to delay or stay a hearing in which a
suspension, revocation, or cancellation of a license by a state agency is at issue before the agency
after notice of the hearing has been given.
(f) A Travis County district court in which an action is brought under this section, on its own
motion or the motion of any party, may request transfer of the action to the Court of Appeals
for the Third Court of Appeals District if the district court finds that the public interest requires
a prompt, authoritative determination of the validity or applicability of the rule in question and
the case would ordinarily be appealed. After filing of the district court's request with the court of
appeals, transfer of the action may be granted by the court of appeals if it agrees with the findings
§ 2001.038. Declaratory Judgment, TX GOVT § 2001.038
ofthe district court concerning the application of the statutory standards to the action. On entry of
an order by the court of appeals granting transfer, the action is transferred to the court of appeals
for decision, and the validity or applicability of the rule in question is subject to judicial review
by the court of appeals. The administrative record and the district court record shall be filed by
the district clerk with the clerk of the court of appeals. The court of appeals may direct the district
court to conduct any necessary evidentiary hearings in connection with the action.
Credits
Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th
Leg., ch. 894, § 1, eff. Sept. 1, 1999.
Notes ofDecisions (69)
V. T. C. A., Government Code§ 2001.038, TX GOVT § 2001.038
Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Doctmwnl' .?,Oi5 Thom::ton Hcukrs. Nn c!n!m !:1> tJriginall.I.S, nuvernrnent \Vur!,s,