(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context indicates otherwise.
  (1) Licensed optometrist or therapeutic optometrist. As defined in Texas Occupations Code §351.251.
  (2) Store and forward technology. As defined in Texas Occupations Code §111.001(2).
  (3) Telehealth services. As defined in Texas Occupations Code §111.001(3).
(b) Practitioner-Patient Relationship for Telehealth Services. A valid practitioner-patient relationship is present when the optometrist:
  (1) has a preexisting practitioner-patient relationship with the patient; or,
  (2) provides the telehealth services through the use of one of the following methods, as long as the practitioner complies with the follow-up requirements in subsection (b)(2)(D) of this section, and the method allows the practitioner to have access to, and the practitioner uses, the relevant clinical information that would be required in accordance with the standard of care described in Texas Occupations Code §111.007:
    (A) synchronous audiovisual interaction between the practitioner and the patient in another location;
    (B) asynchronous store and forward technology, including asynchronous store and forward technology in conjunction with synchronous audio interaction between the practitioner and the patient in another location, as long as the practitioner uses clinical information from clinically relevant photographic or video images, including diagnostic images; or the patient's relevant medical records, such as the relevant medical history, laboratory and pathology results, and prescriptive histories; or
    (C) another form of audiovisual telecommunication technology that allows the practitioner to comply with the standard of care described in Texas Occupations Code §111.007.
    (D) A practitioner who provides telehealth services to a patient as described in subsection (b)(2)(B) of this section shall:
      (i) provide the patient with guidance on appropriate follow-up care; and
      (ii) if the patient consents and the patient has a primary optometrist, provide to the patient's primary optometrist within 72 hours after the practitioner provides the services to the patient a medical record or other report containing an explanation of the treatment provided by the practitioner to the patient and the practitioner's evaluation, analysis, or diagnosis, as appropriate, of the patient's condition.
(c) Fraud and Abuse Prevention. All optometrists or therapeutic optometrists that use telehealth services in their practices shall adopt protocols to prevent fraud and abuse through the use of telehealth services.
(d) Notice.
  (1) Privacy Practices.
    (A) Unless previously provided, optometrists or therapeutic optometrists that communicate with patients by electronic communications other than telephone or facsimile must provide patients with written notification of the optometrists' or therapeutic optometrists' privacy practices prior to evaluation or treatment, with a good faith effort 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 C.F.R. Parts 160 and 164 relating to privacy of individually identifiable health information.
  (2) The optometrist or therapeutic optometrist providing or facilitating the use of telehealth services shall ensure that the informed consent of the patient, or another appropriate individual authorized to make health care treatment decisions for the patient, is obtained before telehealth services are provided.
  (3) 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.
(e) Minimum Standards. An optometrist or therapeutic optometrist providing a health care service or procedure as a telehealth service is subject to the same standard of care that would apply to the provision of the same health care service or procedures in an in-person setting. An optometrist or therapeutic optometrist providing a telehealth service must:
  (1) establish a practitioner-patient relationship;
  (2) maintain complete and accurate medical records as set out in §277.7 Patient Records of this title (relating to Chapter 277. Practice and Procedure); and
  (3) meet the minimum standard of care for the initial examination of a patient for whom an ophthalmic lens prescription is signed under Texas Occupations Code §351.353.
(f) Issuance of Prescriptions.
  (1) A prescription issued as a result of a telehealth service is subject to the same standards as an in-person setting.
  (2) A therapeutic optometrist shall meet the standard of care and demonstrate professional practice standards and judgment, consistent with all applicable statutes and rules when issuing, dispensing, delivering, or administering a prescription medication as a result of a telehealth service.
  (3) An optometrist or therapeutic optometrist shall meet the standard of care and demonstrate professional practice standards and judgment, consistent with all applicable statutes and rules, when prescribing or fitting lenses or prisms as a result of a telehealth service.
  (4) A valid prescription may be issued as a result of telehealth services as part of a practitioner-patient relationship as set out in §279.16(b). A valid prescription for any pharmaceutical agent shall meet all applicable laws regarding the prescribing, dispensing, delivering or administering of a dangerous drug or controlled substance. A valid prescription for ophthalmic goods or procedures shall meet all applicable requirements of Texas Occupations Code, Chapter 351.
(g) Security Requirements. Adequate measures must be implemented to ensure that patient communications, recordings and records are protected consistent with Federal and State privacy laws.

Source Note: The provisions of this §279.16 adopted to be effective March 4, 2013, 38 TexReg 1362; amended to be effective August 30, 2021, 46 TexReg 5417