Texas Board of Nursing Re-Adopts Emergency Amendments to Rule 217.24 Effective August 1, 2021 and Proposes New Rule Amendment

The Texas Board of Nursing (Board) met in an emergency meeting via teleconference on July 30, 2021, to adopt new emergency amendments to §217.24, relating to Telemedicine Medical Service Prescriptions, pursuant to a finding of imminent peril to the public health, safety, and welfare, which requires adoption in fewer than thirty (30) days' notice, as authorized by Tex. Gov't. Code §2001.034.

On March 13, 2020, the Governor of the State of Texas certified COVID-19 as posing an imminent threat of disaster to the public health and safety and declared a state of disaster in all counties of Texas.  On March 23, 2020, the Office of the Governor granted a waiver of 22 Tex. Admin. Code §217.24(e)(1), which prohibits an advanced practice registered nurse (APRN) from treating chronic pain with scheduled drugs through the use of telemedicine medical services, unless otherwise permitted under federal and state law.  The waiver, however, expired on June 6, 2020.

The Board held a public meeting on June 8, 2020, to consider the adoption of an emergency rule to permit advanced practice registered nurses to treat chronic pain with scheduled drugs through the use of telemedicine medical services under certain conditions during the COVID-19 pandemic. At the conclusion of the meeting, the Board voted to adopt the emergency amendments to 22 Tex. Admin. Code §217.24(e)(1).  The emergency amendments took effect June 8, 2020. Subsequently, the Board found that the continued effects of the COVID-19 pandemic necessitated the continuation of emergency amendments to §217.24(e) and re-adopted emergency amendments to the section several times. Most recently, the Board met on July 30, 2021, and the Board has determined that the continuation of the effects of the COVID-19 pandemic necessitates the continuation of an emergency rule. The emergency rule became effective August 1, 2021.

The adoption of emergency amendments to §217.24(e) was immediately necessary to allow APRNs to provide necessary treatment to established patients with chronic pain while mitigating the risk of exposure to COVID-19.  Under the emergency amendments, the treatment of chronic pain with scheduled drugs through the use of telemedicine medical services by any means other than via audio and video two-way communication is prohibited, unless certain conditions are met.  First, a patient must be an established chronic pain patient of the APRN.  Second, the patient must be receiving a prescription that is identical to a prescription issued at the previous visit.  Third, the patient must have been seen by the prescribing APRN or physician or health professional as defined in Tex. Occ. Code §111.001(1) in the last 90 days, either in-person or via telemedicine using audio and video two-way communication. These requirements are consistent with the rules adopted by the Texas Medical Board at 22 Tex. Admin. Code §174.5 (relating to Issuance of Prescriptions) on an emergency basis and the provisions of federal law that currently permit the use of telemedicine medical services for the prescription of controlled substances during the COVID-19 pandemic.

Further, an APRN must exercise appropriate professional judgment in determining whether to utilize telemedicine medical services for the treatment of chronic pain with controlled substances.  In order to ensure that telemedicine medical services are appropriate for the APRN to use, the adopted rule requires an APRN to give due consideration to factors that include, at a minimum, the date of the patient’s last in-person visit, patient co-morbidities, and occupational related COVID-19 risks.  These are not the sole, exclusive, or exhaustive factors an APRN should consider under this rule.  Further, the emergency amendments only apply to those APRNs whose delegating physicians permit them to issue refills for patients, and the refills are limited to controlled substances contained in Schedules III through V only. If a patient is treated for chronic pain with scheduled drugs through the use of telemedicine medical services as permitted by this rule, the medical records must document the exception and the reason that a telemedicine visit was conducted instead of an in-person visit.

During its most recent public meeting on July 30, 2021, the Board also determined that permanent rule amendments to §217.24(e), consistent with those amendments adopted on an emergency basis during the pandemic, should also be considered due to the continuation of the pandemic and recent increases in the number of new COVID cases throughout the state.  Further, the Board determined it would routinely evaluate the continued need for the permanent rule as the pandemic progresses to ensure ongoing compliance with state and federal law and to determine when, and if, the necessity of the permanent rule ceases to exist.

The emergency rule that became effective on August 1, 2021, and the rule language proposed for permanent adoption may be found in the highlighted language as follows:

§217.24. Telemedicine Medical Service Prescriptions.
            (a) – (d)  (No change.)
            (e) Limitation on Treatment of Chronic Pain. Chronic pain is a legitimate medical condition that needs to be treated, but must be balanced with concerns over patient safety and the public health crisis involving overdose deaths. The Legislature has already put into place laws regarding the treatment of pain and requirements for registration and inspection of pain management clinics. Therefore, the Board has determined clear legislative intent exists for the limitation of chronic pain treatment through a telemedicine medical service.

                       (1)  For purposes of this rule, chronic pain has the same definition as used in 22 Tex. Admin. Code §170.2(4) (relating to Definitions).

                                    (A) Telemedicine medical services used for the treatment of chronic pain with scheduled drugs by any means other than via audio and video two-way communication is prohibited, unless a patient:

                                                (i)  is an established chronic pain patient of the APRN;

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

                                                (iii)  has been seen by the prescribing APRN or physician or health professional as defined in Tex. Occ. Code §111.001(1) in the last 90 days, either:

                                                            (I)  in-person; or

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

                                     (B) An APRN, when determining whether to utilize telemedicine medical services for the treatment of chronic pain with controlled substances as permitted by paragraph (1)(A) of this subsection, shall give due consideration to factors that include, at a minimum, the date of the patient’s last in-person visit, patient co-morbidities, and occupational related COVID risks.  These are not the sole, exclusive, or exhaustive factors an APRN should consider under this rule.

                                    (C) If a patient is treated for chronic pain with scheduled drugs through the use of telemedicine medical services as permitted by paragraph (1)(A) of this subsection, the medical records must document the exception and the reason that a telemedicine visit was conducted instead of an in-person visit.