in Re Teladoc, Inc., 03-15-00061-CV

in Re Teladoc, Inc.

03-15-00061-CV

| Tex. App. | Jan 27, 2015

Check Treatment

Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 1/27/2015 12:04:11 PM JEFFREY D. KYLE Clerk

*1 ACCEPTED 03-15-00061-CV 3913131 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/27/2015 12:04:11 PM JEFFREY D. KYLE CLERK Cause No. D-1-GN-15-000238 Cause No. D-l-GN-15-000238

TELADOC, INC., § IN THE DISTRICT COURT TELADOC, INC., IN THE DISTRICT COURT

§ Plaintiff, § Plaintiff,

§ v. § 53rd JUDICIAL DISTRICT 53rd JUDICIAL DISTRICT v. § § §

TEXAS MEDICAL BOARD, § TEXAS MEDICAL BOARD,

§ Defendant. § TRAVIS COUNTY, TEXAS TRAVIS COUNTY, TEXAS Defendant. § MOTION TO TRANSFER MOTION TO TRANSFER

TO THE HONORABLE THIRD COURT OF APPEALS TO THE HONORABLE THIRD COURT OF APPEALS

COMES NOW Honorable Gisela Triana, Judge of the 200 th District Court of COMES NOW Honorable Gisela Triana, Judge of the 2001]‘ District Court of

Travis County, Texas, joined by Teladoc, Inc., Plaintiff in Cause No. D-1-GN-15- Travis County, Texas, joined by Teladoc, Inc., Plaintiff in Cause No. D-l-GN-l5- 000238 pending in this court, and requests that this action be transferred to the 000238 pending in this court, and requests that this action be transferred to the Honorable Court of Appeals for the Third Court of Appeals District pursuant to Honorable Court of Appeals for the Third Court of Appeals District pursuant to T EX . G OV ' T C ODE § 2001.038(f) and as grounds therefor would show as follows: TEX. GOV'T CODE § 2001 .038(f) and as grounds therefor would show as follows:

I. Plaintiff Teladoc filed this suit alleging invalidity of an emergency rule Plaintiff Teladoc ﬁled this suit alleging invalidity of an emergency rule

adopted by the Texas Medical Board (“TMB”) on January 16, 2015. A true and adopted by the Texas Medical Board (“TMB”) on January 16, 2015. A true and correct copy of the Petition is attached as Exhibit 1. correct copy of the Petition is attached as Exhibit 1.

Hearing on Teladoc’s request for Temporary Restraining Order was held on Hearing on Teladoc’s request for Temporary Restraining Order was held on

January 20, 2015, with Defendant represented by its general counsel and an January 20, 2015, with Defendant represented by its general counsel and an Assistant Attorney General. After argument by both parties the Court issued its Assistant Attorney General. After argument by both parties the Court issued its MOTION TO TRANSFER Page 1 MOTION TO TRANSFER Page ^[1] *2 Temporary Restraining Order. A true and correct copy of the Temporary Temporary Restraining Order. A true and correct copy of the Temporary

Restraining Order is attached as Exhibit 2.

Hearing on temporary injunction is set for February 2, 2015 and TMB has Hearing on temporary injunction is set for February 2, 2015 and TMB has

not agreed to extend the temporary restraining order despite having done so in the not agreed to extend the temporary restraining order despite having done so in the previous litigation which resulted in the Court of Appeals Opinion of previous litigation which resulted in the Court of Appeals Opinion of December 31, 2014. December 31, 2014.

II. II.

In argument, Defendant TMB submitted its Order Adopting Emergency In argument, Defendant TMB submitted its Order Adopting Emergency

Rule. A true and correct copy of the TMB’s Order Adopting Emergency Rule is

Rule. A true and correct copy of the TMB’s Order Adopting Emergency Rule is attached as Exhibit 3. The TMB’s Order states in part as follows: attached as Exhibit 3. The TMB’s Order states in part as follows:

“The Board further determined that the December 31, 2015 “The Board further determined that the December 31, 2015

[sic] ruling by the Third Court of Appeals created an absence of such

[sic] ruling by the Third Court of Appeals created an absence of such parameters and requirements, thereby allowing practitioners the parameters and requirements, thereby allowing practitioners the ability to prescribe drugs, without ever seeing a patient; thus resulting ability to prescribe drugs, without ever seeing a patient; thus resulting in imminent peril to public health, safety and welfare.” in imminent peril to public health, safety and welfare.” The Court does not agree with TMB’s interpretation of the December 31, The Court does not agree with TMB’s interpretation of the December 31,

2014 ruling of the Court of Appeals. The Court does find that by its Emergency 2014 ruling of the Court of Appeals. The Court does find that by its Emergency

Rule, adopted without notice or opportunity for comment by Teladoc and the

Rule, adopted without notice or opportunity for comment by Teladoc and the employers and numerous members of the public in Texas who have used the employers and numerous members of the public in Texas who have used the

2 *3 services of Teladoc physicians for nine years, TMB intends to deny further provision of those services to the public.

WHEREFORE, premises considered, the Honorable Gisela Triana, joined by Teladoc, Inc., requests this action be transferred to the Honorable Court of Appeals for the Third Court of Appeals District in accord with TEX. GOv’T CODE § 2oo1.o38(r).

Re pectfully submitted, £35!‘ £3 . Emu.» Hon. Gisela Triana JACKSON WALKER L.L.P. By: /s/ Matt Dow

Matt Dow State Bar No. 06066500 Dudley D. McCal1a State Bar No. 13354000 100 Congress, Suite 1100 Austin, TX 78701 (512)236-2000 (512) 236-2002 - Fax

ATTORNEYS FOR PLAINTIFF TELADOC, INC.

zs'a?1s2-*563&=t *4 CERTIFICATE OF CONFERENCE CERTIFICATE OF CONFERENCE

Pursuant to Tex. R. App. P.10.1(a)((5), a conference was held on January 22, Pursuant to Tex. R. App. P.10.1(a)((5), a conference was held on January 22,

2015 with Ted Ross, Assistant Attorney General, counsel for Respondent 2015 with Ted Ross, Assistant Attorney General, counsel for Respondent concerning the merits of this motion. Respondent opposes the motion. concerning the merits of this motion. Respondent opposes the motion.

/s/ Dudley D. McCalla /s/Dudley D. McCalla Dudley D. McCalla Dudley D. McCalla

CERTIFICATE OF SERVICE

This is to certify that on this 27 th day of January, 2015, a true and correct This is to certify that on this 27”‘ day of January, 2015, a true and correct

copy of the foregoing document was served via fax and email on the parties listed copy of the foregoing document was served Via fax and email on the parties listed below:

below:

Ted Ross

Ted

Ross

Office of the Attorney General of Texas

Office of the Attorney General of Texas P.O. Box 12548 P.O. Box 12548 Austin, Texas 78711-2548 Austin, Texas 78711-2548

Fax: 512-474-1062

Fax: 512-474-1062 Email: Ted.Ross@texasattorneygeneral.gov Email: Ted.Ross@texasattomeVgeneral.goV

/s/ Matt Dow /s/ Matt Dow Matt Dow Matt Dow

12031781v.3

l203l78lv.3

Exhibit 1

*5 Exhibit 1

1/20/2015 10:21:45 AM

*6 1/20/2015 10:21 :45 AM

Velva L. Price Velva L. Price District Clerk District Clerk Travis County

D-1-GN-15-000238 T"""'S °°""‘V D-1-GN-15-000238

D-1-GN-15-000238 Cause No. - - - - - -

D-1-GN-15-000238

Cause NO_ TELADOC, INC., § IN THE DISTRICT COURT OF IN THE DISTRICT COURT OF TELADOC, lNC.,

Plaintiff, §

Plaintiff,

§ v. § § TRAVIS COUNTY, TEXAS TRAVIS COUNTY, TEXAS f03<0'if403f47><0'3€4O')f47><0'3E-0':C(7J §

§

§ §

TEXAS MEDICAL BOARD, TEXAS MEDICAL BOARD, § 53rd JUDICIAL DISTRICT

Defendant. 533 JUDICIAL DISTRICT Defendant.

PLAINTIFF'S VERIFIED ORIGINAL PETITION FOR DECLARATORY JUDGMENT

PLAINTIFF’S VERIFIED ORIGINAL PETITION FOR DECLARATORY JUDGIVIENT

AND APPLICATION FOR INJUNCTIVE RELIEF

TO THE HONORABLE JUDGE OF THE DISTRICT COURT:

NOW COMES Teladoc, Inc. ("Teladoc") and files this original petition complaining of

NOW COMES Teladoc, Inc. (“Teladoc”) and ﬁles this original petition complaining of

actions taken by the Texas Medical Board ("TMB") and for cause of action shows as follows: actions taken by the Texas Medical Board (“TMB”) and for cause of action shows as follows:

THIS LAWSUIT

After losing at the Austin Court of Appeals on December 31, 2014 in a related case, TMB

continues to ignore its legal limitations as a state agency, pronounces an emergency where none

continues to ignore its legal limitations as a state agency, pronounces an emergency where none exists and issues an emergency rule (22 T.A.C. § 190.8(1 )(L)) in violation of the Texas exists and issues an emergency rule (22 T.A.C. §190.8(1)(L)) in violation of the Texas Administrative Procedure Act ("APA"). Accordingly, Teladoc asks for declaratory relief from Administrative Procedure Act (“APA”). Accordingly, Teladoc asks for declaratory relief from the Court declaring that the TMB's emergency rule is invalid and enjoining enforcement ofthe the Court declaring that the TMB’s emergency rule is invalid and enjoining enforcement of the emergency rule. emergency rule.

DISCOVERY DISCOVERY

I. Teladoc intends to conduct discovery under Level 2 of Texas Rules of Civil Teladoc intends to conduct discovery under Level 2 of Texas Rules of Civil l.

Procedure 190.3. Procedure 190.3.

PARTIES AND SERVICE OF PROCESS

*7 PARTIES AND SERVICE OF PROCESS

2. Teladoc is a Delaware company domiciled in Dallas, Texas doing business in Teladoc is a Delaware company domiciled in Dallas, Texas doing business in 2.

Travis County, Texas. Travis County, Texas.

3. The Texas Medical Board is the state agency charged with administration of the The Texas Medical Board is the state agency charged with administration of the 3.

Texas Medical Practice Act, Chapters 151-159 of the Texas Occupation Code, and lawful rules Texas Medical Practice Act, Chapters 151-159 of the Texas Occupation Code, and lawful rules and regulations promulgated pursuant to that Act. TMB may be served with process by serving and regulations promulgated pursuant to that Act. TMB may be served with process by serving its Executive Director, Mari Robinson, at 333 Guadalupe, Tower 3, Suite 610, Austin, Texas its Executive Director, Mari Robinson, at 333 Guadalupe, Tower 3, Suite 610, Austin, Texas 78701. 78701.

JURISDICTION AND VENUE

4. Teladoc brings this suit for declaratory relief under the authority of TEX. Gov'T. Teladoc brings this suit for declaratory relief under the authority of TEX. GOV’T. 4.

CODE § 2001.038 and the Uniform Declaratory Judgment Act, TEX. Crv. PRAC. & REM. CODE CODE § 2001.038 and the Unifonn Declaratory Judgment Act, TEX. CIV. PRAC. & REM. CODE § 37.001 et seq. Teladoc brings its application for injunctive relief under the authority of TEX. § 37.001 et seq. Teladoc brings its application for injunctive relief under the authority of TEX. CIV. PRAC. & REM. CODE§ 65.001, et seq. CIV. PRAC. & REM. CODE § 65.001, et seq.

FACTS

Teladoc, the TMB and Section 190.8(1)(L) Teladoc, the TMB and Section 190.8(1)(L)

5. In November 2003, Section 190.8(1)(L) of Title 22 ofthe Texas Administrative In November 2003, Section 190.8(l)(L) of Title 22 ofthe Texas Administrative 5.

Code (the "Rule") was adopted, after proper notice and comment under the Administrative Code (the “Rule”) was adopted, after proper notice and comment under the Administrative Procedures Act (the "APA"). That section, which has not been changed or amended materially Procedures Act (the “APA”). That section, which has not been changed or amended materially since its adoption, prohibits the prescription of "any dangerous drug or controlled substance since its adoption, prohibits the prescription of “any dangerous drug or controlled substance without first establishing a proper professional relationship with the patient." 1 The Rule states without ﬁrst establishing a proper professional relationship with the patient?” The Rule states further: further:

(i) A proper relationship, at a minimum requires: (i) A proper relationship, at a minimum requires: Teladoc physicians do not prescribe controlled substances. The term "dangerous drug" includes many

' Teladoc physicians do not prescribe controlled substances. The term “dangerous drug” includes many common medications that are not "dangerous" but simply require a prescription from a physician. common medications that are not “dangerous” but simply require a prescription from a physician.

2 *8 (I) establishing that the person requesting the medication is in fact who the person claims (I) establishing that the person requesting the medication is in fact who the person claims to be; to be; (II) establishing a diagnosis through the use of acceptable medical practices such as (ll) establishing a diagnosis through the use of acceptable medical practices such as patient history, mental status examination, physical examination, and appropriate patient history, mental status examination, physical examination, and appropriate diagnostic and laboratory testing. An online or telephonic evaluation by questionnaire is diagnostic and laboratory testing. An online or telephonic evaluation by questionnaire is inadequate; inadequate; (III) discussing with the patient the diagnosis and the evidence for it, the risks and (III) discussing with the patient the diagnosis and the evidence for it, the risks and benefits of various treatment options; and beneﬁts of various treatment options; and (IV) ensuring the availability of the licensee or coverage of the patient for appropriate (IV) ensuring the availability of the licensee or coverage of the patient for appropriate follow-up care. follow-up care. 6. Teladoc, a Texas-based company, is both the first and largest provider of Teladoc, a Texas-based company, is both the first and largest provider of 6.

physician telehealth consultations in the United States. Since introducing its cost effective, physician telehealth consultations in the United States. Since introducing its cost effective, modern approach to Texas in 2005, Teladoc's services have been incorporated into both private modern approach to Texas in 2005, TeIadoc’s services have been incorporated into both private and public health plans. Teladoc now provides its services to the entire commercially-insured and public health plans. Teladoc now provides its services to the entire commercially-insured population of Aetna in the State of Texas, as well as several large group employers such as population of Aetna in the State of Texas, as well as several large group employers such as AT&T, Home Depot, Rent- A-Center, and MetroPCS, and over three hundred smaller employers AT&T, Home Depot, Rent- A—Center, and MetroPCS, and over three hundred smaller employers through non- Aetna plans. Teladoc also covers approximately 800,000 members of the Texas through non- Aetna plans. Teladoc also covers approximately 800,000 members of the Texas State Medicaid managed care population, approximately 25,000 individuals within the Medicare State Medicaid managed care population, approximately 25,000 individuals within the Medicare population, id., and a number of children in foster care for the Texas Health and Human Services population, id., and a number of children in foster care for the Texas Health and Human Services Commission. Commission.

7. Since beginning operation in Texas in 2005, not a single malpractice suit has been Since beginning operation in Texas in 2005, not a single malpractice suit has been 7.

filed against Teladoc or its affiliated physicians for Teladoc telephone consultations. Indeed, tiled against Teladoc or its affiliated physicians for Teladoc telephone consultations. Indeed, there was only one prior instance in which the TMB even inquired whether a Teladoc physician there was only one prior instance in which the TMB even inquired whether a Teladoc physician might have violated Section 190.8(1 )(L). In February 2006, the TMB notified Dr. Robert might have violated Section l90.8(1)(L). In February 2006, the TMB notiﬁed Dr. Robert Kramer, a Teladoc physician, that it was investigating him for a potential "failure to establish the Kramer, a Teladoc physician, that it was investigating him for a potential “failure to establish the patient-physician relationship as per Board rule 190.8(1 )(L)." See Exhibit 1 attached hereto and patient-physician relationship as per Board rule l90.8(1)(L).” See Exhibit ^[1] attached hereto and

3 *9 incorporate herein by reference for all purposes. That investigation lasted less than four months, incorporate herein by reference for all purposes. That investigation lasted less than four months, being dismissed in June 2006 "because the Board determined there was insufficient evidence to being dismissed in June 2006 “because the Board determined there was insufficient evidence to prove that a violation of the Medical Practice Act occurred." prove that a violation of the Medical Practice Act occurred.”

8. Despite being fully aware of Teladoc's telehealth services model for at least five Despite being fully aware of Teladoc’s telehealth services model for at least ﬁve 8.

years, the TMB made no efforts to prevent Teladoc or Teladoc affiliated physicians from years, the TMB made no efforts to prevent Teladoc or Teladoc affiliated physicians from performing telephone consultations; indeed, the only inquiry ended in no action. On June 16, performing telephone consultations; indeed, the only inquiry ended in no action. On June 16, 2011, however, TMB's general counsel unexpectedly sent Teladoc a letter threatening 201 1, however, TMB’s general counsel unexpectedly sent Teladoc a letter threatening disciplinary action against its physician contractors and legal action against Teladoc. See Exhibit disciplinary action against its physician contractors and legal action against Teladoc. See Exhibit 2 attached hereto and incorporate herein by reference for all purposes. The letter asserted that 2 attached hereto and incorporate herein by reference for all purposes. The letter asserted that Teladoc was "in violation of Board rules" and was "jeopardizing [the] respective licenses" of its Teladoc was “in violation of Board rules” and was “jeopardizing [the] respective licenses” of its physicians because the TMB "does not believe that physicians in Texas can rely op [Teladoc's] physicians because the TMB “does not believe that physicians in Texas can rely on [Teladoc’s] representations as to compliance with Texas Board rules." representations as to compliance with Texas Board rules.”

9. The basis of this TMB letter was the Board's policy and opinion that Board rule The basis of this TMB letter was the Board’s policy and opinion that Board rule 9. 190.8(1)(1) required a "face-to-face" examination of a patient before any physician could l90.8(l)(L) required a “face-to-face” examination of a patient before any physician could prescribe any dangerous drug or controlled substance. The quoted words do not appear in the prescribe any dangerous drug or controlled substance. The quoted words do not appear in the Rule. No prior notice of the letter was given to Teladoc. Rule. No prior notice ofthe letter was given to Teladoc.

10. Specifically, the TMB rejected Teladoc's plain language interpretation of Section Specifically, the TMB rejected Teladoc’s plain language interpretation of Section 10. 190.8(1 )(L ), which requires that before prescribing medication, a doctor must "establish[] a l90.8(l)(L), which requires that before prescribing medication, a doctor must ‘‘establish[] a diagnosis through the use of acceptable medical practices such as patient history, mental status diagnosis through the use of acceptable medical practices such as patient history, mental status examination, physical examination, and appropriate diagnostic and laboratory testing." 22 TEX. examination, physical examination, and appropriate diagnostic and laboratory testing.” 22 TEX. ADMIN. CODE § 190.8(1 )(L)(i)(II). Teladoc read the words "such as" to indicate that the ADMIN. CODE § l90.8(l)(L)(i)(II). Teladoc read the words “such as" to indicate that the medical practices listed are illustrative, being of a type which constituted "acceptable medical medical practices listed are illustrative, being of a type which constituted “acceptable medical practices," but not required in their totality to meet the requisites of the rule. practices,” but not required in their totality to meet the requisites ofthe rule.

4 *10 II. The TMB asserted instead that every practice listed in Section 190.8(1 )(L)(i)(II) The TMB asserted instead that every practice listed in Section 190.8(l)(L)(i)(II) 11. after "such as" is required to satisfY the "acceptable medical practices" standard. The TMB after “such as” is required to satisfy the “acceptable medical practices" standard. The TMB

argued that a "face-to-face" physical examination was required, therefore, in order to "establish a

argued that a “face—to-face” physical examination was required, therefore, in order to “establish a physician/patient relationship" under Section 190.8(1 )(L). Thus, the TMB concluded, continuing physician/patient relationship” under Section l90.8(l)(L). Thus, the TMB concluded, continuing to follow the Teladoc model "will lead to disciplinary action against the participating doctors in to follow the Teladoc model “will lead to disciplinary action against the participating doctors in the program," as the TMB "will take all legal steps as are necessary" should Teladoc continue to the program,” as the TMB “will take all legal steps as are necessary” should Teladoc continue to advertise that its services conform with Texas law. advertise that its services conform with Texas law.

I2. Teladoc thereupon filed suit in the 353rd Judicial District Court ofTravis County, 12. Teladoc thereupon ﬁled suit in the 353rd Judicial District Court of Travis County,

Texas, seeking a declaration that the TMB's interpretation of Section I90.8(l)(L) is void for the Texas, seeking a declaration that the TMB’s interpretation of Section 190.8(1)(L) is void for the TMB's failure to comply with APA notice and comment requirements and an injunction to TMB’s failure to comply with APA notice and comment requirements and an injunction to prevent the TMB from enforcing its new interpretation against Teladoc and similar telehealth prevent the TMB from enforcing its new interpretation against Teladoc and similar telehealth companies. The gravamen of the complaint was that this new interpretation was so inconsistent companies. The gravamen of the complaint was that this new interpretation was so inconsistent with the TMB's historical interpretation and the text of Section 190.8(l)(L) that it constituted a with the TMB’s historical interpretation and the text of Section l90.8(l)(L) that it constituted a new rule, which was invalid for want of notice and comment. new rule, which was invalid for want of notice and comment.

I3. The TMB opposed emergency injunctive relief on the grounds that its The TMB opposed emergency injunctive relief on the grounds that its 13. interpretation was consistent with the text and prior interpretation of Section I90.8(1 )(L), and interpretation was consistent with the text and prior interpretation of Section 190.8(l)(L), and that Teladoc's action was a premature attack on the TMB's permissible exercise of its that Teladoc’s action was a premature attack on the TMB’s permissible exercise of its adjudicative authority. On July I9, 201I, the Hon. John Dietz granted a temporary restraining adjudicative authority. On July 19, 201], the Hon. John Dietz granted a temporary restraining order, barring the TMB from enforcing the rule as contained in the June I6 letter. See Exhibit 3 order, barring the TMB from enforcing the rule as contained in the June 16 letter. See Exhibit 3 attached hereto and incorporate herein by reference for all purposes. On August I 0, 20 II, the attached hereto and incorporate herein by reference for all purposes. On August 10, 2011, the TMB agreed to extend the TRO during the pendency of the case. TMB agreed to extend the TRO during the pendency of the case.

I4. After several months of discovery, both parties moved for summary judgment. On After several months of discovery, both parties moved for summary judgment. On 14.

March 4, 20 I 3, the Hon. Amy Clark Meachum signed an order granting summary judgment for March 4, 20l3, the Hon. Amy Clark Meachum signed an order granting summary judgment for

5 *11 the TMB. See Exhibi 4 attached hereto and incorporate herein by reference for all purposes. The the TMB. See Exhibit 4 attached hereto and incorporate herein by reference for all purposes. The court also suspended enforcement of the judgment pending appeal, however, finding that the enforcement of the judgment pending appeal, however, ﬁnding that the court also suspended harm to Teladoc fro not suspending enforcement was greater than any potential harm that harm to Teladoc from not suspending enforcement was greater than any potential harm that supersedeas would ca se to the TMB or the public. See Exhibit 5 attached hereto and incorporate Jse to the TMB or the public. See Exhibit 5 attached hereto and incorporate supersedeas would ca herein by reference for all purposes. The TMB was thus prohibited from enforcing its

for all purposes. The TMB was thus prohibited from enforcing its herein by reference interpretation of Secti n 190.8(1 )(L) against Teladoc, and Teladoc has continued to operate as it interpretation of Section 190.8(l)(L) against Teladoc, and Teladoc has continued to operate as it has since 2005. has since 2005.

15. On De ember 31, 2014, the Austin Court of Appeals reversed the order granting On De 15. zember 31, 2014, the Austin Court of Appeals reversed the order granting

summary judgment nd rendered summary judgment declaring that TMB's pronouncements nd rendered summary judgment declaring that TMB’s pronouncements summary judgment a regarding Rule 190.8 1 )(L )(i)(II) contained in its June 2011 letter are a "rule" under the APA l)(L)(i)(II) contained in its June 2011 letter are a “rule” under the APA regarding Rule 190.8 and, therefore, invali under section 2001.035 of that Act. See Exhibit 6 attached hereto and and, therefore, invalic under section 2001.035 of that Act. See Exhibit 6 attached hereto and incorporate herein by eference for all purposes. incorporate herein by reference for all purposes. No "Emergency" No “Emergency”

16. On Ja uary 16, 2015, the TMB adopted an amendment to the Rule stating the On J aruary 16, 2015, the TMB adopted an amendment to the Rule stating the 16.

"purpose of the emer ency amendment is to protect the public health and welfare by clarifying “purpose of the emergency amendment is to protect the public health and welfare by clarifying that a face-to-face vi it or in-person evaluation is required before a practitioner can issue a that a face—to-face visit or in-person evaluation is required before a practitioner can issue a prescription for drugs " See Exhibit 7 attached hereto and incorporate herein by reference for all ” prescription for drugs See Exhibit 7 attached hereto and incorporate herein by reference for all purposes. Among ot er things, the amendment replaces "such as" with "which includes purposes. Among other things, the amendment replaces “such as” with “which includes documenting and per rming.”

17. TMB lso announced the amendment to the Rule will be presented at the 17. TMB lso announced the amendment to the Rule will be presented at the

February 12 and 13 oard meeting for consideration for publication and comment according to February 12 and 13 oard meeting for consideration for publication and comment according to the regular rulemaki~g process. See Exhibit 8 attached hereto and incorporate herein by the regular rulemakiiiig process. See Exhibit 8 attached hereto and incorporate herein by reference for all purpc)ses. This process, if followed, will give Teladoc and other affected parties reference for all purposes. This process, if followed, will give Teladoc and other affected parties

6 *12 and physicians opportunity to submit data, views and arguments before attempted adoption of and physicians opportunity to submit data, views and arguments before attempted adoption of any rule proposed by TMB (200 1.029). any rule proposed by TMB (2001.029).

18. Given Teladoc's history of several years' operations in Texas and the short time Given Teladoc’s history of several years’ operations in Texas and the short time 18.

from January 16,2015 to instigation of proper rule-making procedure under the APA, if done, from January 16, 2015 to instigation of proper rule-making procedure under the APA, if done, any claim or suggestion of need for protection of, or imminent peril to, the public health and any claim or suggestion of need for protection oﬁ or imminent peril to, the public health and welfare by TMB is the essence of arbitrary and capricious action by TMB. In deposition given welfare by TMB is the essence of arbitrary and capricious action by TMB. In deposition given in the previous lawsuit on December 6, 2011, the Executive Director of TMB stated that she in the previous lawsuit on December 6, 2011, the Executive Director of TMB stated that she "work[s] with the General Counsel's office and we go over the Rules and we discuss those rules “work[s] with the General Counsel’s office and we go over the Rules and we discuss those rules with the Board. We ensure that the- there's not going to be a rule passed before it's published with the Board. We ensure that the — there’s not going to be a rule passed before it’s published with time for comment. ... " The Board now ·has violated the APA twice by promulgating

as with time for comment. . .. The Board nowihas violated the APA twice by promulgating "rules" without allowing affected persons opportunity for comment and without complying with “rules" without allowing affected persons opportunity for comment and without complying with the APA. the APA.

BRIEF IN SUPPORT

Imminent Peril

19. The APA § 2001.0034(a)(IH2), (b) and (d) requires an agency to set forth the The APA § 2001.0034(a)(l)-(2), (b) and (d) requires an agency to set forth the 19. following to adopt an emergency rule: following to adopt an emergency rule:

( 1) the rule adopted; the rule adopted; (1) (2) written reasons for the rule's adoption; and

written reasons for the rule’s adoption; and (2) (3) written reasons for the agency's findings that

written reasons for the agency’s ﬁndings that (3) (a) an imminent peril to the public health, safety, or welfare exists (a) an imminent peril to the public health, safety, or welfare exists

20. Judge Scott McCown defined imminent peril as follows: Judge Scott McCown defined imminent peril as follows: 20.

The words suggest a soon-to-be-upon-us public disaster not merely a serious The words suggest a soon-to-be-upon-us public disaster not merely a serious

policy concern ... Imminent means soon but not yet. If a problem is here, it is not . Imminent means soon but not yet. If a problem is here, it is not policy concern .

. imminent, but present. A present problem is not an imminent peril, regardless how imminent, but present. A present problem is not an imminent peril, regardless how serious. The legislature does not want an agency to address present problems with serious. The legislature does not want an agency to address present problems with

7 *13 emergency rules ... long standing problems ... can not be classed as imminent peril ... emergency rules . . . long standing problems . . . can not be classed as imminent peril .

. . as a corollary, an agency can not allow a distant problem to become an imminent peril by as a corollary, an agency can not allow a distant problem to become an imminent peril by inaction and then promulgate an emergency rule. . . the test is whether an agency inaction and then promulgate an emergency rule. . . the test is whether an agency reasonably could and should have foreseen the problem in time to address it by full reasonably could and should have foreseen the problem in time to address it by ﬁlll procedure. 2 procedure.2

TMB's purported "emergency" is a slap at the Legislature and the Public TMB’s grported “emergency” is a slap at the Legislature and the Public

21. Notice, transparency, public participation, and reasoned justification must precede 21. Notice, transparency, public participation, and reasoned justification must precede

assertions of agency authority by adoption of rules. As the Austin Court of Appeals stated in its assertions of agency authority by adoption of rules. As the Austin Court of Appeals stated in its opinion, "We must give effect to these important safeguards, as the Legislature has intended." opinion, “We must give effect to these important safeguards, as the Legislature has intended.”

22. The timeline for the "emergency" looks like this. 1) Teladoc begins operating in 22. The timeline for the “emergency” looks like this. I) Teladoc begins operating in

Texas in 2005; 2) the TMB investigates a Teladoc physician in 2006 but dismisses the Texas in 2005; 2) the TMB investigates a Teladoc physician in 2006 but dismisses the investigation; 3) the TMB sends a letter of June 16, 2011 to Teladoc threatening Teladoc and its investigation; 3) the TMB sends a letter of June 16, 201 ^[1] to Teladoc threatening Teladoc and its physicians; and finally, almost ten years after Teladoc began doing business in Texas and sixteen physicians; and ﬁnally, almost ten years aﬁer Teladoc began doing business in Texas and sixteen days after losing at the Court of Appeals, the TMB declares an emergency. There is no days aﬁer losing at the Court of Appeals, the TMB declares an emergency. There is no imminent peril. There is no emergency. There is only a state agency ignoring its legal imminent peril. There is no emergency. There is only a state agency ignoring its legal limitations in a blatant attempt to get its way. limitations in a blatant attempt to get its way.

The harm to Teladoc The harm to Teladoc 23. The "emergency rule" will have an immediate and severe impact on Teladoc's The “emergency rule” will have an immediate and severe impact on Teladoc’s 23.

ability to do business in Texas. Teladoc's physicians cannot conduct telephonic consultations or ability to do business in Texas. Teladoc’s physicians cannot conduct telephonic consultations or prescribe medications if they believe that by doing so without first conducting a face-to-face prescribe medications if they believe that by doing so without first conducting a face-to-face physical examination and the other practices listed in the Rule, they will be subjected to physical examination and the other practices listed in the Rule, they will be subjected to disciplinary action by the TMB. disciplinary action by the TMB.

CAUSE OF ACTION CAUSE OF ACTION

Request for declaration of rights under the Rule

Request for declaration of ri2hts under the Rule 2 F. Scott McCown, Opinion on Temporary Injunction, I Tex. Admin. L.J. 16, 27-30 (1992) ^[2] F. Scott McCown, Opinion on Temporary injunction, ^[1] Tex. Admin, L.J. I6, 27-30 (1992)

8 *14 24. Teladoc requests that the Court declare that the TMB's emergency rule is invalid Teladoc requests that the Court declare that the TMB’s emergency rule is invalid 24. for two reasons. First, there is no imminent peril to public health, safety or welfare and TMB has for two reasons. First, there is no imminent peril to public health, safety or welfare and TMB has made no such finding. Second, TMB did not endeavor to state in writing reasons to support a made no such ﬁnding. Second, TMB did not endeavor to state in writing reasons to support a finding of the requirements of APA § 2001.034(a)(l)-(2), (b), and imminent peril to the public ﬁnding of the requirements of APA § 200l.034(a)(1)-(2), (b), and imminent peril to the public health, safety or welfare if one had been made. See Methodist Hospitals of Dallas v. Texas health, safety or welfare if one had been made. See Methodist Hospitals of Dallas v. Texas Industrial Accident Board, 978 S. W.2d 651 (Tex. App. -Austin, 1990, no writ). Industrial Accident Board, 978 S.W.2d 651 (Tex. App. —Austin, 1990, no writ). Application for TRO Application for TRO

25. Teladoc asks the Court to temporarily enjoin enforcement of the "emergency Teladoc asks the Court to temporarily enjoin enforcement of the “emergency 25.

rule" adopted by TMB pending a trial on the merits. Teladoc has a probable right to the relief it rule” adopted by TMB pending a trial on the merits. Teladoc has a probable right to the relief it seeks because no imminent peril to public health, safety or welfare exists as evidenced by seeks because no imminent peril to public health, safety or welfare exists as evidenced by Teladoc's operations in Texas for nine years, and TMB did not follow the requirements of APA Teladoc’s operations in Texas for nine years, and TMB did not follow the requirements of APA

§ 2001.034(a)(l)-(2), (b), and (d). Harm to Teladoc is imminent because TMB issued notice of

§ 2001 .034(a)(l)-(2), (b), and (d). Harm to Teladoc is imminent because TMB issued notice of the emergency rule on January 16, 2015. The "emergency rule" will have an immediate and the emergency rule on January 16, 2015. The “emergency rule” will have an immediate and severe impact on Teladoc's ability to do business in Texas. Teladoc's physicians cannot conduct severe impact on Teladoc’s ability to do business in Texas. Teladoc’s physicians cannot conduct telephonic consultations if they believe that by doing so without conducting prior face-to-face telephonic consultations if they believe that by doing so without conducting prior face—to-face physical examination they will be subjected to disciplinary action by the TMB. Unless TMB is physical examination they will be subjected to disciplinary action by the TMB. Unless TMB is immediately stopped from taking or threatening to take disciplinary action against Teladoc immediately stopped from taking or threatening to take disciplinary action against Teladoc physicians based on TMB's "emergency rule," Teladoc physicians will likely withdraw from the physicians based on TMB’s “emergency rule,” Teladoc physicians will likely withdraw from the Teladoc PA. Ifthe Teladoc physicians withdraw, Teladoc will be unable to serve its clients and Teladoc PA. If the Teladoc physicians withdraw, Teladoc will be unable to serve its clients and lose millions of dollars in revenue. Teladoc has no adequate remedy at law because it cannot lose millions of dollars in revenue. Teladoc has no adequate remedy at law because it cannot recoup the loss of doctors and patients, should TMB endeavor to enforce its second illegal rule, recoup the loss of doctors and patients, should TMB endeavor to enforce its second illegal rule, as it has done before with the rule invalidated by the Austin Court of Appeals. as it has done before with the rule invalidated by the Austin Court of Appeals.

9 *15 Request for permanent injunction Reguest for permanent injunction

26. Teladoc asks the Court for a permanent injunction after trial. Teladoc asks the Court for a permanent injunction after trial. 26.

PRAYER PRAYER

WHEREFORE, premises considered, Teladoc asks the Court to declare invalid the W1-IEREFORE, premises considered, Teladoc asks the Court to declare invalid the

emergency rule adopted by TMB and to temporarily enjoin its enforcement, pending a trial on emergency rule adopted by TMB and to temporarily enjoin its enforcement, pending a trial on the merits, and upon trial on the merits, a permanent injunction enjoining enforcement of the the merits, and upon trial on the merits, a permanent injunction enjoining enforcement of the emergency rule. Teladoc asks for costs of suit and all other relief, at law or in equity, to which emergency rule. Teladoc asks for costs of suit and all other relief, at law or in equity, to which Teladoc may be entitled. Teladoc may be entitled.

Respectfully submitted, Respectfully submitted,

JACKSON WALKER L.L.P.

JACKSON WALKER L.L.P. By: Is/ Matt Dow By: /s/ Matt Dow

Matt Dow

State Bar No. 06066500

State Bar No. 06066500 Dudley D. McCalla Dudley D. McCalla State Bar No. 13354000 State Bar No. 13354000 100 Congress, Suite 1100 100 Congress, Suite 1100 Austin, TX 78701 Austin, TX 78701 (512) 236-2000 (512)236-2000 (512) 236-2002- Fax (512) 236-2002 - Fax

ATTORNEYS FOR PLAINTIFF

10 CERTIFICATE OF SERVICE

*16 CERTIFICATE OF SERVICE

This is to certify that on this 20th day of January, 2015, a true and correct copy of the

foregoing document was served via email and fax on the parties listed below: foregoing document was served via email and fax on the parties listed below:

Ted Ross Ted Ross Office of the Attorney General ofTexas Office of the Attorney General of Texas P.O. Box 12548 P.O. Box 12548 Austin, Texas 78711-2548 Austin, Texas 78711-2548 Fax: 512-474-1062 Fax: 512-474-1062

Is/ Matt Dow /s/ Matt Dow

Matt Dow Matt Dow

11 11

12017815v.l l20l7815v.l

1/20/2015 12:07:05 PM

*17 1/20/201512:07:05 PM

Velva L. Price Velva L. Price District Clerk District Clerk Travis County Travis County

D-1-GN-15-000238

VERIFICATION D-1-GN-15-000238

VERIFICATION

AJ e'-'.J Lj o (l)L Nam) ‘go/LIL

STATE OF OONNECIICtn § STATE OF G6N'N'ECTI'CUT

,vew ldOIUL.

§

§ mm 304/;

§

COUNTY OF FAIRFIELD-

§

COUNTY OF

§

BEFORE ME, the undersigned Notary Public, on this day personally appeared Jason BEFORE ME, the undersigned Notary Public, on this day personally appeared Jason

Gorevic, who being by me duly sworn on his oath deposed and said that he is the President and Gorevic, who being by me duly sworn on his oath deposed and said that he is the President and Chief Executive Officer of Teladoc, Inc., Plaintiff in the above entitled and numbered cause; that Chief Executive Officer of Teladoc, Inc., Plaintiff in the above entitled and numbered cause; that he has read the above and foregoing Verified Original Petition for Declaratory Judgment and he has read the above and foregoing Veriﬁed Original Petition for Declaratory Judgment and Application for Injunctive Relief; and that the statements contained in paragraphs 5-15 and 20 Application for Injunctive Relief; and that the statements contained in paragraphs 5-15 and 20 are within his personal knowledge and true and correc are within his personal knowledge and true and

V A;

4.44/«I

W1 Gore/c SUBSCRIBED AND SWORN TO BEFORE ME, on this the ~0 day of January, 2015, SUBSCRIBED AND SWORN TO BEFORE MB, on this the :20 day of January, 2015,

to certify which witness my hand and official seal. to certify which witness my hand and official seal.

1;: C Notary Public, S e of NV ~o~<... New 0 L Notary Public, S e of My Commission Expires: -s=f~t t My Commission Expires:

»o...,p.§L‘»§,‘é.’¥."'.?«"u..v.«; No. 4704776 nunlmod In Co!-M‘! I 5- ------------------··------------- ' ,. ··-·- -·· -·- 1044685Iv.l l044685 l v.1

*18 Exhibit 1 Exhibit 1

*19 Lette

from Texas Board of Medical Examiners against Dr.

Lette from Texas Board of Medical Examiners against Dr. Kram

r February 14, 2006

Kram r February 14, 2006

Texas Medical Board Texas Medical Board !' {t (P\ ~.()l ~

\1.; w:~ \.i:t~ i• • ·''-''lo<'•, j 1 .;·•,,-.,;HI •. v,-.... |~u m,:.::. . .«.~«.‘._:. (‘4.\.,'n|'. n t<<-i~l:t )11\,Ct•H n "(M])yl':\.‘u.|4 7-‘emu.-uy I-4, 2065 ROBERT IVAN KRAMER,I.iD ROBERT IVAN KRAMER, MD 3702 HOLLAND U 9 3702 HOLLAND II 9

DALLAS, TX 75219

DALLAS‘ TX 75219 Ftc· F1!c tt OG·l097 (pfensa mfar lo lhiti numt>nr m lulutc corrcspontJcmco) H;-- Fm; n 0541197 lnlensa mic! In mks numnm m Imum collr.-spanllencv) Dear Doctor KRAMER: Dear Doclor KRAMER: The ~oxu5 Modicnl Bo.od tTMS) hns tn1tiatca n tormn! invor)!t!)t!t!on of you nrHJ/Ot yoJt mdcfJcnl The Texas mdzcax Bcad(TM5)h:.sm>Ii.1(r:a s Kenna’ in\'a1;Hg.':lIun cl you nndlcr your vnatﬁcnl pmcflco. Tho oonnrnl statutory allognlion •s: pmcncu. The general sleuulcry ullngahan \s‘ 1~1.052{u){6) USES AN ADVERTISING STATEMENT THAT IS FALSE. MISLEADING OR DECEPTIVE l6J.D52(n)(G) USES AN ADVERTISING STATEMENT THAT IS FALSE. MISLEAUING OR DECEPTI‘/E 1&1.051(u)(3) COMMITS A RULE VIOLATION 16-\.05I[u)(3) cov.u.urs A RULE vzomaou

‘ nnrl mora s occihcally rc-!nlcfi to: nnri mnm saccrlrcany aclmnr. la: TtuJ TalcDoc. Wobsita (www.tclade<:.com) ns rolntos to lolac. misloudt~19 ndvfJttis1ng, toHuro to O$tnbtish pa!iont· The Tz:|L-Do: Vh’cbs1|L=(w‘.wI.xc!:IdDc com) au 1:.-talus to Inicn‘ nuisleadvng ndvarlzsmg. lauum Ia osmbhsn parlour pl1y$'cinn IOia!lonship os per Boord rulo 190.6( 1)(L). nr~cJ lho co1por;;tc pmctlca of mod>cino. pI\y:‘ch)nIulm1on5h1D as pm Board rulo 19(l.ﬂ(I](L). and mu comoralc pmcuza at momcine. PIOa$0 CO<'n;>IOIO lhO onclosod Mcd~enl Prncticc O~ostionnctilo (MPO) oM lohnn it on Of boloro Mensa commmo mu onclrmul r.1cducnIPunr.mc Questionnaire (MPO) and mlum II on as lxulom 3Mi00. If you hnvo not prC'i>ousty provided n dotaltad narmt!ve explaining tho citeumtttmcas (N106. I! you have nm prcvmusly pro-Adan 2: uolacmd nnrrnhvc explaining ma cucumomnces, su:round<ng this mollol, you oro oncowagod to do so of this limo. P!oaso know thnl TMB suzroumixng Ilus muunr. you are encuumgau re do 50 cxllhis1umo.FIuMo knaw lhal ma Is HIPPA oxompt. I3 HIPPA oxvrﬁbk. Although this m;!Uor is nssigncd ro nn invostigotor wllo is not in tho t\ustin ofhco, unfuss diroctod A1lnaugn|ni5 manor is assigned to nn mvosrignlnr who Is no! in tho /\u5l:n olhca, unhzss cmcclna to do o1hcrwiso~ p!anso for~wnd nH couc$pondonco to mnil drpp MC·262 nllha ubova nddrcss. la do mhorwiso. plaasu Inm.-mt nu couespanucnco lo m.1i!mc\nMC~262 nl Ihr: zlbovn address. r:or mforrnutlon wgrnding tt1e cornplninl process, ploaso visit our wobs1to al w\'IW.tmb.stnto.tx.us F or mlmmullon mgnrding l|\o colnpininl process. via-150 wsiv our wubsmo nl rA‘NI.ImD.slnla.xx.u3 Sincerely, sincnlcl-/. 1.1an f1ob•n,on. J.D .. l.lanag<,r ~ ~ MunR0bIn\2.0r\,J,D,,M‘I'1.ry:l ~ Cornplnlnt~; nnd lnvn5Hgni!Of\O cnn.prn.m:-. ma Lnvrzshgnlnnns KELLY PI\T“»()N. A:'»4gnI‘(A In‘/(':7|vg:)Ir17 (5 I21 25~3«73GI ' A

EXHIBIT

A EXHIBIT t ....... 0 4 W”

“

~ el 1Doc«>

Proprietary and Confidential

“H'‘' M H “W -~ Proprietary and Confidentlal

T 11022

*20 Letter from Dr. Kramer to the Texas Board of Medical Letter from Dr. Kramer to the Texas Board of Medical

Examiners in response to allegations May 29, 2006

Muylv.ﬂMm

VIA Uvur. gill! Dclimry & llnzsnnilc ~Is. 1vl.m RohirNJO, J.D. Nix‘. .'\1.II‘lRUl7lllH'()n,}.D Tc.xas State Bo:1rd ,;f Medkai Exarn;rt""" Tcxm Sulc Board of ;’\«Ic<llI:.n l-'>.mxm\<~,rs P.O. Hox 20 I B. 1\lad Drnp lviC-262 |’.(). Mex 2018, Mull Dmp M('-262 Austin. TX 7X76:0:· 20! S /\usl|IL TX 7&7(AI\‘—'lU!S Rc. l'il<: il 182 (Robert Ivan Kr:rru~n Rc. I'lIl: ll I82 {Ruben Ivan Knnucr) D~ar 1\h. Robinson: Dear ‘Via. ROluII\‘0n:

I am in rc~ccipt 0f ynur leiter dated January 25, 2006 informing me ol a n>mplamt ‘pl orynur lcllcr Llzucd .lunu.1ry 25. 2()f)(> Informing nu; 0| n cumplzunl I am in r ~~~

that has b~en initiated ullcglng violations nf sections lo'l.li)Z(uJ(liJ. 16-1.051(a)(3). nnd ~ Ilml h.:\ been ini ||C|.| ullcglng \'ix>I;uinus<:( \CCIiuM lﬁxI.IIS2(n)(6I, I6-I135 IIu)(.”4), nnd 16-1 052ruJ( J 7) of' the Texas Occuputions Cotk und Board Rule 190.8( I )ti.J. I ht·rehy I0-l D5'llu)(l7) of the 'l'cxns OccupuIIon.~: (.‘nLlc::|1dBn.1nlRulc l90.8(|)L|.). lh -clay deny the allcgatmns. bur am hopeful that my response will mid res-; your c·orwcnu and that deny Ihc Llllcgnulmns. hul um IIupL-ﬁll Iluu my rcepnlxsc will ;\<ldn:-< yuur clalwccrxlx and that rro (urlhe.r auiun will be nccc"ary by you m your offic~. no fmllucr union will In: m-.cI:,<.~;:ry Ivy you In’ ynur uxlice. ~ ~

I ;,.hn!l begin by ~H.ldre:.;\;ing your t't.1nct.~fll!-\ rt~ganJinr my invo!vemt·nt wtth !he -.Img. my anmm-um-nu mm me ^[1] may lwcgjn l!_y u:lr.ln:»'-ting ynurL‘m)cu:I1\s I

TduDnc wehsiw ("the Wchslte .. l. The Weh>ilc is own~d and opcratctl hy C'yhcr Medical ~ ~ Ti:luDoc wclmlc (“Ihc Wclmw-"I. TIN: Wchsnc uwncLiiII1<l on all hy Cylicr Mcllicul Services. Inc. d/hla/ Tc.li!Doc Medic«! Scrvic<!'s C'CMS''). CMS ,toe,; not pr;l<'tice ~ ~ Sc icc~. Inc. ¢|/I7/:1/Tc|;zDUC Mediuurl Services ("(‘M$ ). (‘MS III ~ \‘ not pmcl c mc-drc:inc .. ClvlS admmistcrs a paricnl dawhasc and rdcrs patient c;dl> to physician,: mcduunc. (TMS udmuusl -\ u pulicnl rlumlxusc nml rclcrs |3.IIi\: [culls ID physicians employed by a physic·iuns· "·""''iatinn oamcd TdaDt>c·, P.t\. ("The PA''). !Vly role nn th~ ’ ‘x:l:|l)m-. I’ A. ‘Iv: PA"). My rule nn lhr: mnpluycll hy il physicians’ av nciauiun nunuul llnard or Dirccwrs ol' CMS i,.1o serve a•; n liui~on between CMS ur1d The f'A ·,n order t<1

~~ lmurd cl‘ ltvircunrs 0 Cl\1S ^[1] . In ~;cr\*c ~ .. llulson bcl-.\-ccn C . um! The PA in order In ~ ~ ensure I hal Tela Doc membcn; receive •·g.olcl stand.rrd" cnre from The f'A 's doctors. vmulc Ih.u 'l’cluDuc ml-mbcrs [cue old <I2Iml.Iul“ calw from The F‘/\‘,« xlucmn.

My history as n plly.sh:ian will dcm<1nstrutc my commitment to pmi<•nl Cllrc. My hismry us: vlvyslnmx will zlcumnxlrulu my l.‘l)|lIlIllllDl.‘|ll lu pmimrl cave, ~

Attached"' "Exhibit 1 .. is a .:opy of my Cltrrcnt resume. Thrmrgh hard work and 11 ' Almclscd us “lixlnbll 1" u cnpy ufmy cum-nl rcsurnc. Thmugh lmnl work and n ucmcnclous belie!' in my role as a physician, I h;l\'c dcvclorcd a very ,;oJicl, n•ttional umncmlous hcliI:I'm my rule in u phyuiuian. I huvc (lC\lCl(7|‘IL§ll u very solid. nzlximnl repuwtion in the rncdkal 11cld. I h:tve chosen to wcnk on the Tela Doc con.:cpt hceau-;c I rL‘pul1EllI)I\ in um nucdicul ﬁeld. I have chosen In work an lhc TclnDm: r:onccpI luau no I hclicvc in it~ mi;;sion of rt•dudtlg hcalth .. care c:o;;t,;, ern powering I he paticnl to make ~ ~ nu nf reducing hcullh unre um . ulnpowcringlluc patient In make hclicvc in it» a ccrtuin health-related decisions. and incrcnswg ace'!"' to top-quality health care. f drtf not ~ Ctlﬂulll l|C3lll]l-ILI‘-\lC(]dC“Vl0lIS.1lllLlll‘lCl't?ll$lllgI|L|. «a ll’) lop-qII:Ilil_y hcnllh cam. lllul nut dton,;c Ill be pan or HH! Tela Doc r.:oncc,pl for J'inrmci:tl rcn-;ons. t\,; 1 liuv''· done clmn.-zcInbcp;Ir1urIl|c'I‘eluDoc ::<>n<-cpl |'nr I'innuci.1l urlwn.-.. Asl Inuvc. done thmutrltoutmy nearly 50 yean; in the mcdkal rrofcss10n. I have chPscn to utlvnGrlc. a Ilmmglluul my nearly 50 years in the medical prrvfcsslon. I Imvc chosen In znlvnmm: u p:uticular nwdci of paticnl care bcc;msc I hchcvc that 11 i~ good fnr patkms. pnrnculur m<:clL~l uf [lmicnl cine l\cc:m.<c I believe Ihznl (I is good for p;.lli::xIh.

What ur!Jactcd rn~ to the Tela Due cow:cpt of' on-call patient care w;t., the - \Vl\ulIll1luC I mc1nIlu:'l‘cl.ll)nc umu'cp1nl'nn-cull pullclll cam \HI.\ lhc ~ ~

afTord.,bility and ready ace'~'' lo qualified physid:rns tlwt othcrwr!>C arc not widdy ~~ cu;-.1, In mm "ml plly. M Ilull ulllI:r\Vl.‘iC1|r¢ nut wntlcly ~ clubilily and re .1 avarlablc inth<' market. The TdaDoc ><"rvice is dcsi~ned for rntnine patient calls whNc ~

. uhlc II) Inc nmrkct. T111: T<,'luDuc *-.:‘I‘\‘icc. in nlcsignccl fur rumlm-. pzllicm culls whcru :1 1h;: patirnt is ~!fh,~r away frorn !he primury care plty:-.icinn or is un;thle tn accC'-'!o\ the the pulucxn is cill1€I'a\vu)' frnm Illc pmnury cure phy.~|cinn ur is unable m zIL‘I.‘L's‘.s' lllc

l'ugt• I nf2 l'u);o I at ^[2]

EXHIBIT EXHIBIT

, 4 ,;£......

._Q

12010 ’ 12010 5 Tela Doc-3

Proprietary and Confidential

In nu \( xvnwx H Proprietary and Confidential

T 0023

T (I025

*21 prnn;,ry c·.~re phj"C"'" bu! ,flll requm:s lllllncdi.lll! il\C'tlic:al ;!I tent ion. TdaiJ,K· '' n''' ~ hm y tuxrc ph_mct:m hul xllll I‘t:qutrcS IH\ll‘::.'(|l.llI:lH\.'Lll<J1Il alllclllitm. Tulaunc ts llul dL'-tgn<:tlw rL~phH:e a prim.uy CH!\.' ph;~dl'I<Hl and doe:~ not p!!qwll !o d.:,, !',!i. tlcstgvtml tn rcphttrc .t [\lill1.ll ;. curv ph)».1'..' n ;nul doc‘ um putpust lu tlu 5... ~

Your ieucr indicate-d a t:on(t:rn r~g.1nfing rile a!lcgcd "failure tn e-1\lnbiL;II p~Hknf .. ' Yum ttcrtmllt';ttt:.l:1.:tuttcrttrcgatrtlingrltc allcgctl "l'.n'hm- tn I,'\llI|)I§>'h ~ ism- phy.skiaa relationship"~ per Gourd rul~ llJ0.8( I )(LJ .. The TclaD<>C mndd involves " pltystx.i:t/: rl: :l'mn~:hi{ ts pvt Bmtttl (MIC l‘)(LS( l )(Lt Thu Tclttllnt: ttmtlul in\-uh-(:2 ~ deli\ cry ul p:Hknt care \"ia telephone medical consults. Tckphnnic care IS pa11 of (l(!ll‘.<.'l“,‘ ul pttticnt ::.trc \'l«l lclcphunt: utatltcttl ctxttsttlts. 1clx:pl1rttttL' um: us pm at’ tradnional Jn~tllvinc. The Amcricau Colkgc. 11f Pbysic~;ms has writ len c'<tcmivdy on the

~ tmtlttttmul tmdtc 1c. The Atttcrmut ("allege uf P11)» tns has WL'lllCll\1\u:ll\L!\Clyl)ll zlm hcnc•firs or acces.sing pali<'llti. ,.;,, tdcphonc. I have ;J\Iachcd 1wo articks l'mm 1hc ACP. llCllI.‘flI$ nl';xr:v:t'ss'tt\g pztltctm \liI tulcplmttc. I hut .t‘.l:t<:hcd lwu txrliclv Hum Iht: «\(‘P. ~ '"'" from l'l'lx nnd !hf other from "00 I. They an: indudcd in "E.\hihit 2" 10 thi' lctt<:r. ~~ ulll' l't'rmt IWR and the allies‘ frmu 2001. They zuc tntlutlctl in “l' hthit 2" to this letter. ~ Ju;:t as those :trllclcs .1dvisc. The PA physicians who treat CMS nwmbcrs huvc" ~ JI|.\'l us those ttclc,-« .ttlvi,w. The PA [l\I)'€lCl(lIl.\ whu treat (‘MS nwmhctx htnc .

~ \.'nrnpkl~ pallcllf hlxhlry m front of them. PA do~Ior.'l alsn ~pend w~ much Iin1e as j, ~ tnplctc pullulll lIl.‘\IUr_\‘ lll lruul or lhcﬂh PA tlucttm ztlett xpcml us much time zts is nc\.·t:ssary to arrive af an act.:uralC cvaJualion and ltl ~1ddrcss questions rrom ptllicnt!'t. This ~ ncvcsmry lu arrive all ttn tlLL'lll'ﬂll! C\‘llllJJ|lll!|I ttntl ll) .'|dtlrc.~‘ qttt: inns lrmn pulicn ~ ~ ‘H: I.\ i< t/lc typt• of Cntt thai thKiors p!OVIU~ ail the lllllC til l'ft·~ltJI and l'I11SS-Clii'C'HI;,!C is tlec lypc ul'c:m llhtl tl-mars pttwtdc all lhc lttnc tn |'l|- ~ I and I.'f‘l‘I$.‘~-l.‘U\'£‘l-|"C ~ >ilwuions. Only this tintc, the donor is pr,lvidcd with much more mfornmlion by w\tich ' silunlintts. Only Ill" ~ ttmc, the tlnctur is pruvitlcd with mud: nmtt: tnl'urtn:tlttttt hy ulticlt to mr~ke un nppnJpri4ih.~ diagnosis.

~ ll) wnhc an nppmpnzttc tllttgnn Morcov~:r. Tcla])()c's model dm•s not usc in1ancr or tclcpflt)ne qul.'stinnnaircs in Murt:n\'t:r. Tcl:tDtvc .‘ tuotlcl cltws um Inst: inlcrncl on tclcpltom: qttcxttinunttircs in

~ order to cv;duatc p;tliclll condition,;. In other words, PA d<1tlors arc not prucricing otdct tt: t:v;tI|ldl¢ pnltcnt cottrlitlon.» ln ulllcr wttrtls. P/\ tlnclurs are not practicing intentct medicine. Tltt• only n>lc that I he internet plays is to ltclp CMS memhcrs enroll in inrctm-.t trtctliulttu. 'l'ht- Ullly rule that me itttcrnct plztys is In help CMS tttcrnhcrs enroll in tlte scrvJcc and provide mcdicallll>torics for the t:xdu,ivc usc and viewing of PA ll|L' scrvtcc and pmvitlc nmdlct-l hmtnrics lur thu L')\L‘lU.\IVl.‘ H50 and viewing 01' PA doctor~. d(!L‘l0r\‘.

I wnuld now like ro address any i.ssucs concerning the Tcl;tOoc website at ‘ l wnttltl now like ll: :ldlJl'c.\‘:a ttny mes cunccrning lhc 'l'ul.tDo<' wclmilc ztl ~ _\~\VI'£,1Y.!!!l.!<X'.tt®. I am not involved with the d~,ign m wnrding ,,,. the Website. !\'ly ~ tc|ztt_lg,;ctun. lmn nul itwulvutl with the t’Jx:\igl10( wnt-ding nfthc Wch.~;i(c. My fm:us at Tela Doc is ttJ make sure tJr;ll the proper infrasuucture exist' ltJ enable gold ~ ‘ lncu ul ll5l.'t[lL1L' ts to make sun: that the pmpr ml‘r structure l: la In cnuhlt; gold ~ >IHndard cure. llmwser. in my rok ;t~ a member of tlw CMS bourd. I will be lltlppy 10 \(1ln(l:(l'lI cmc. lI4>\\'u\'t:l. in my ml; 4N ;l mt:nt|)cr nfthc CMS tmtttd. l will be ltuppy [0 help implement any clwngt:; tha!lhc Texas Medical flclnrd feels arc nerc>sary lf" ynu ~ ~ help itnp|t:nu:nl any L'|tung,.. tlutl the Tcxtls Mt all Bnttrd lccls turn m. wnry lfymt ~ mvkw my <1V<'r four rlt:cadcs as a licensed phy>idan in Tc.xas, y(lu will set' I but J hai'C ~ ~ ll‘.\/1L‘\\’ my twcr ("our tlntcttdcs s Ll liccnsctl plty ttn tn Tc. ,yutl will see. lhnl lhtn-c unwaveringly upheld lht, highest r<~ganJ for the Tcx<IS 1"1edkal flt,;tr<L 1\' a!w;1ys. I will ~ ttnw.tv:rm;,-ly Ltphcld lhc htgltcst re ml Iur tltc '1‘cx.n t\/‘C'JiI. l Bmwd. A: nlw-Iys. ^[1] will defer to the Texas Medical llnurd', judgment and suggestion>. Uclhr In the Texas Medical I)t)ttr(l'.~judgnlx:nI and sttggcstiryns ~

I appreciate ymtr considerution and hope that ^[110] i'unher action will be necessary ~

l[\l‘£ClillC your (:|)ll.\‘lU(.‘l’llllt\n and Impe thtu nu l'u|1ht:r ttcttun wtll bl: ncc hy your orncc. Should you have any furrhcr qu,"tinn~. plcu'c c.nntuc1 me at 97?.-HM· by your c flee. Sltottld you have any furlhtrr t‘]Il<'s|inlI-4, plans-c cmmtct me. at 973~X(I5« 16 J ~ or drhohkr<!J.IIcr\«:rw.L.mu. ~ I6]-I t)rt_lrlmltkt tttut ggmgm

Your:. V<:'l)' truly. Ymtm vcly truly. Rc>h<:n Kram~r. M.D. Rnlxcrr Ktmncr. M D

Pa~t..' 2 of 2 Pztuu 1 or 2

·-----·-·--·---........,.--------------------

12010 TelaDoc@j) " 6 12010

5 G . I ,. .. ,,,,, " " ' " " , Proprietary and Confidential -I:«»et.t.£.§t Proprietary and Cunlidonlial T 002-l T 0024

*22 Letter from Texas Board of Medical Examiners dismissing Letter frgm Texas Board of Medical Examiners dismissing

case against Dr. Kramer June 8,2006

TEXAS tviEDICAL BOARD \1'\HI'~I \{)j))lj~.\o I~· Jj(~\.'•il\· \),'</!11\\ ''>d·l'•!)\• mum. mun 3» I .m ~ ! n "• I 1 \ l 'l ~·' • · ~ • l/ ^[1] i u.. .x-

Jcr.n U, 2001) Jlmr? U, 2UL‘5 ROBERT iV,\N Kf1AMEH. MD ROBERT !V.‘~N KRAMEH. MD 3702 I iOl LAI>JD 3702 HOLLAIJD If 9 N ^[9] DALLAS T:< 75219 DALLAS TX 75219 nu; Fvo non-ins: Doar Doclor KRAMtm. Dom Doctor KHAMER. ·1 he· im·c>lil!ali"n rct'crcnccd ubc1\ ,. bus lwcn dismi%cd hccau>c the llnmd lh:l~nnincd thc_r~ 11 as . g: on n:v‘crcnccd ubmc lms bvL‘ndia‘nIi:<sL'(l hccausc me unnnl ilvlurminml mm: “:13 in,unieicnt ,•vi< knee to pmvc that n violati11n o( !he Mcdicnl.l'r~ctkc Act. •;ccurrcd: .spect~!call~· • ~'"~~d '!"

la [in cllmln\‘iul:I1iunnl'llIu Mcdicni l'r.u;t'Icu Act uv:curn‘d. SpcciI'xc:Ii|,»'.l and on izmutmiuxix v.‘\’i|k'n 1!n~ findinH" of th~ ln\'t'~:.ti:gO\tiun, De Kratnl'r i:-o not invoh•t ^[1] d 1n 1nc ;ufvcrttiOm~ ,]fl 1tdnDot.: ~ \\ ~,:b:-.!fc .lll!

1;; inn, Dr Krumrr is mu nu-ulvod in cm AuI\L‘rIi\'il!y,«)l\ Tu!.1l)nc‘:. webs c and :51: I‘uu)in-,:~ urnw dth:'> n,·u prnvidc dirccl patit.·m \:ilfC to COil'llllH:r:-; .. dues um pnmdc Ali!» puiicui cum In cnimiiiimz. . ·1· 'Jfll • t· '· '1\ C >1\·'t:mint• thi< Wll\rJHilll ' f '' ' ' t\~ !'tUCh. this cornpluint hn~ b..-cn \ tS.InlSf<Ct. l"'tJ lurlnt~ Ut..: wn \\ l I ^[1] .<\.\' nuch. this ruIn[!luIn||Ia::lwwlsllxlniuui.NuI‘u11huruc!i«)n\xiHliulukcncmxtcmingzllizi cmnx\I.z1n| ~.: ~•""\; .._ ' .... • A n:t:onJ of this matter will hc1.:~m1c u hbh,rical pilrt of our lih:~ >1Hd rcnmin:-i \:\t~ltUh\rily A rccurd uftluis manner will become a hiaivrical pun nfnur Iilus um! n:m-Jinx slmulnrily ~nnlitknlinl. unnﬁxlmlinl. Sincorcly. smcomly.

, t 1 /:l it 'XtU.\ ir,(JrJ+' • ,/,,.,·~· ' /·· / - 'r. '. . ‘x ,r ‘ . -"I 5L .~.6[M "1’.-‘fv"“‘* ~ ~ 1,1nri RctiH't~~on. J.D .. f..IDnaqm uzui Rctimson. .J.D., l.im\nqaI Cornpltlifil!~ and lnvos:~onllo:-~!' Compl.-u‘rw: and Invcsugnlmns u'.=«:x:aa w

EXHIBIT EXHIBI

~ Tel 12010 7 " W0 Doc"') 7 TelaDoc«> .. ,,,, Proprietary and Confidential mm. .. mm. .. '0 ~ W \'I i ^[1] 0. ' Proprietary and Confidential T 00::!5 T0025

*23 Exhibit 2 Exhibit 2

~

*24 Texas Medical Board Texas Medical Board MAILING ADDRESS: P.O. BOX 2018 • AUSTIN TX 78768-2018 MAILING ADDRESS: Po. Box 2018 - AUSTIN TX 78763-20I8

PHONE: (512) 305-7010 PHONE: (512)305-7010 June 16,2011 June 16,2011

VIA LONE STAR OVERNIGHT DELIVERY

VIA LONE STAR OVERNIGHT DELIVERY Mr. Paul Squire, Esq. Mr. Paul Squire, Esq. General Counsel General Counsel Teledoc Teledoc 1 00 .Spring Valley, Ste 600 100,Spring Valley, Ste 600 Dallas, Texas 75244 Dallas, Texas 75244 Dear Mr. Squire: Dear Mr. Squire: Several recent representations by Teledoc regarding its internet program have come to the Several recent representations by Teledoc regarding its internet program have come to the attention of the Texas Medical Board ("Board"). These representations cause concern on the attention of the Texas Medical Board (“Board”). These representations cause concern on the part of the Board for its licensed Texas physicians. Physicians who choose to participate in the part of the Board for its licensed Texas physicians. Physicians who choose to participate in the internet program you advertise should be able to expect that your company has taken all steps internet program you advertise should be able to expect that your company has taken all steps necessary to ensure that the service or product offered by you in Texas meets all Texas legal necessary to ensure that the service or product offered by you in Texas meets all Texas legal standards and requirements. Further, physicians should be able to have assurances from your standards and requirements. Further, physicians should be able to have assurances from your company that they will not be jeopardizing their respective licenses should they choose to company that they will not bejeopardizing their respective licenses should they choose to participate. The Board does not believe that physicians in Texas can rely on your representations participate. The Board does not believe that physicians in Texas can rely on your representations as to compliance with Texas Board rules should they opt to participate in your program. as to compliance with Texas Board rules should they opt to participate in your program. As you may recall, the Board, after extensive public input and numerous stakeholder meetings, As you may recall, the Board, after extensive public input and numerous stakeholder meetings, several of which Teledoc participated in, adopted new telemedicine rules last year. As you will several of which Teledoc participated in, adopted new telemedicine rules last year. As you will also recall, of all the stakeholders, only Teledoc and Optimum opposed the final rules as adopted, also recall, of all the stakeholders, only Teledoc and Optimum opposed the ﬁnal rules as adopted, maintaining throughout the rulemaking process that "face-to-face" examinations were not maintaining throughout the rulemaking process that “face-to—face” examinations were not necessary to establish a physician/patient relationship. Board Rule 190.8(1)(1) provides: necessary to establish a physician/patient relationship. Board Rule 190.8(1)(L) provides: Prescription of any dangerous drug or controlled substance without first establishing a proper Prescription of any dangerous drug or controlled substance without first establishing a proper professional relationship with the patient. professional relationship with the patient.

(i) A proper relationship, at a minimum requires: A proper relationship, at a minimum requires: (i) (I) Establishing that the person requesting the medication is in fact who the Establishing that the person requesting the medication is in fact who the

(I)

person claims to be; person claims to be;

(II) Establishing a diagnosis through the use of acceptable medical practices Establishing a diagnosis through the use of acceptable medical practices

(H)

such a patient history, mental status examination, physician examination, such a patient history, mental status examination, physician examination, and laboratory testing. An online or telephone evaluation by questionnaire and laboratory testing. An online or telephone evaluation by questionnaire is inadequate; is inadequate;

The Board both initially and throughout the process specifically rejected the position that a The Board both initially and throughout the process speciﬁcally rejected the position that a "face- to- face" examination was not required to establish a physician/patient relationship and “face— to— face” examination was not required to establish a physician/patient relationship and *25 crafted the Board rules to allow for situations in which that required "face-to-face" examination crafted the Board rules to allow for situations in which that required “face-to-face” examination Mr. Paul Squire, Esq. Mr. Paul Squire, Esq. June 16, 2011 June 16, 2011 Page No.2 Page No. 2 could be accomplished through the use of the internet. Further refinements were provided for could be accomplished through the use of the internet. Further reﬁnements were provided for after that initial physician patient relationship was established. However, the fundamental after that initial physician patient relationship was established. However, the fundamental language of Board Rule 190.8(1)(L) was never changed. language of Board Rule l90.8(1)(L) was never changed. Teledoc's advertising material has multiple statements indicating that its process can be Teledoc’s advertising material has multiple statements indicating that its process can be conducted over the telephone without any prior establishment of a physician/patient relationship conducted over the telephone without any prior establishment of a physician/patient relationship via a "face-to-face" examination. Such statements include: via a “face-to-face” examination. Such statements include:

• "Teledoc .... provides Aetna's Texas insured members access to Texas licensed 0 “Teledoe ....provides Aetna’s Texas insured members access to Texas licensed

physicians who treat minor non-emergent medical conditions via remote telephone physicians who treat minor non-emergent medical conditions via remote telephone consultations when the member's primary care physician is not available." consultations when the member’s primary care physician is not available.”

• "Specialize in talking with patients and diagnosing problems over the phone." 0 “Specialize in talking with patients and diagnosing problems over the phone.” • "In compliance with the Texas Medical Board's rules, do not consult with 0 “In compliance with the Texas Medical Board’s rules, do not consult with

individuals via email, algorithm or online chat, nor are consultations based solely on individuals via email, algorithm or online chat, nor are consultations based solely on an online or telephone consult questionnaire." The Board notes that the only thing the an online or telephone consult questionnaire.” The Board notes that the only thing the physician will be looking at is the patient's medical records maintained by Aetna. There physician will be looking at is the patient’s medical records maintained by Aetna. There will be no "face-to-face" examination by the Teledoc physician. will be no “face-to—face" examination by the Teledoe physician.

• "You should be aware that Teledoc was actively involved in the comments to such I “You should be aware that Teledoe was actively involved in the comments to such

Rules." The Board notes that as Teledoc described its practices before the Board Rules.” The Board notes that as Teledoe described its practices before the Board members sitting on the rulemaking committee, Teledoc was told it was then violating members sitting on the rulemaking committee, Teledoe was told it was then violating Board rules and if it continued in that vein it would continue to be in violation of Board Board rules and if it continued in that vein it would continue to be in violation of Board rules. rules.

• "Moreover, the Texas Medical Board, when adopting the Telemedicine Rules last - “Moreover, the Texas Medical Board, when adopting the Telemedicine Rules last

year, intentionally deleted phone consults from the definition of "telemedicine year, intentionally deleted phone consults from the definition of “telemedicinc medical services" before the rules were finally adopted in August 2010. You should medical services” before the rules were ﬁnally adopted in August 2010. You should note that Teledoc does not provide video consultations here in Texas that would note that Teledoe does not provide video consultations here in Texas that would meet the definition of telemedicine medical services under the TMB's rules. Finally, meet the deﬁnition of telemedicine medical services under the TMB’s rules. Finally, the access which Teledoc provides to Aenta's members complies with the TMB's the access which Teledoe provides to Aenta’s members complies with the TMB’s prior guidance ensuring that the standard of care is met in Teledoc's physicians' prior guidance ensuring that the standard of care is met in Teledoc’s physicians’ consultations." · Teledoc does correctly note that phone consults were deleted from the consultations.” ‘Teledoe does correctly note that phone consults were deleted from the rule as adopted because such consults were directly in opposition to the position of the rule as adopted because such consults were directly in opposition to the position of the Board that "face-to-face" consults were the only appropriate manner in which to establish Board that “face-to~face” consults were the only appropriate manner in which to establish a physician/patient relationship. Such deletion was not the result of the Board's decision a physician/patient relationship. Such deletion was not the result of the Boards decision that telephone consultations would be appropriate. The Board notes that Teledoc was in that telephone consultations would be appropriate. The Board notes that Teledoc was in violation of the Board's rules then and is in violation of the rules now, in that its program violation of the Board’s rules then and is in violation of the rules now, in that its program does not provide for a prior physician/patient relationship to be established with the does not provide for a prior physician/patient relationship to be established with the "face- to-face" examination aspect. “face- to-face” examination aspect.

*26 LOCAL ADDRESS: 333 GUADALUPE, TOWER 3, SUITE 610 • AUSTIN TX 7870 I Locm. Aooness: 333 GUADALUPE, Town 3, some 610 - Austin TX 78701

WEB: www.tsbme.state.tx.us WEB: www.tsbme.state.tx.us

Mr. Paul Squire, Esq. Mr. Paul Squire, Esq. June 16, 2011 June 16, 2011 Page No.3 Page No. 3

• "· ... diagnose routine, non-emergency medical problems, recommend treatment, - “. . . . diagnose routine, non-emergency medical problems, recommend treatment,

and can even call in a prescription to your pharmacy of choice, when necessary:" and can even call in a prescription to your pharmacy of choice, when necessary:”

These statements are but a few ofthe statements made by Teledoc, that if followed by licensed These statements are but a few of the statements made by Teledoc, that if followed by licensed Texas physicians, will lead to disciplinary action against the participating doctors in the program. Texas physicians, will lead to disciplinary action against the participating doctors in the program. Such knowing and deliberate misrepresentation is unconscionable given the active participation Such knowing and deliberate misrepresentation is unconscionable given the active participation ofTeledoc in the discussions and rulemaking procedures leading up to the adoption of the of Teledoc in the discussions and rulemaking procedures leading up to the adoption of the telemedicine rules in Board Rule 174 this last year. Teledoc has been told by Board members, telemedicine rules in Board Rule 174 this last year. Teledoc has been told by Board members, the Executive Director and myself, as General Counsel, that the structure proposed by Teledoc is the Executive Director and myself, as General Counsel, that the structure proposed by Teledoc is contrary to the Board's rules and that opinion has not changed due to the adoption of Board Rule contrary to the Board’s rules and that opinion has not changed due to the adoption of Board Rule 174. The adoption of that rule did not in any manner amend, modify, or delete the requirements l74. The adoption of that rule did not in any manner amend, modify, or delete the requirements ofBoard Rule 190.8(1)(1). of Board Rule l90.8(1)(L). Accordingly, the Board is hereby notifying you that any representation that you make regarding Accordingly, the Board is hereby notifying you that any representation that you make regarding Teledoc's program being in conformance with the Board's rules will be directly and firmly Teledoc’s program being in conformance with the Board’s rules will be directly and ﬁrmly refuted by the Board. By copy hereof, the Board is sending this correspondence to the Texas refuted by the Board. By copy hereof, the Board is sending this correspondence to the Texas Medical Association. Medical Association. The Board will take all legal steps as are necessary should it see continued advertisements The Board will take all legal steps as are necessary should it see continued advertisements containing the material referenced above. containing the material referenced above.

Sincerely, Nancy Leshikar, J.D. Nancy Leshikar, J.D. General Counsel General Counsel

cc:

VIA LONE STAR OVERNIGHT DELIVERY

VIA LONE STAR OVERNIGHT DELIVERY CC! Rocky Wilcox, JD Rocky Wilcox, JD Vice President and General Counsel Vice President and General Counsel Texas Medical Association Texas Medical Association 401 West 15th Street 401 West l5th Street Austin, Texas 78701 Austin, Texas 78701

LOCAL ADDRESS: 333 GUADALUPE, TOWER 3, SUITE 610 • AUSTIN TX 7870 I

*27 LOCAL ADDRESS: 333 GUADALUPE, TOWER 3, SUITE 610 ~ AUSTIN TX 78701

WEB: www.tsbme.state.tx.us WEB: www.tsbme.state.tx.us

Exhibit 3 Exhibit 3 *28 Cc:ntso No. D-1~GN-11-002115 Cause No. D-1-GN-11~0O2115

Tl:l.ADOC, INC., § Clerlr IN THE DISTRICT COURT Tl‘:t.ADOC, INC... IN Tl--IE DISTRICT COURT

am

Pl<:iin!iff, § Texas I-"|.j1,irtIIIf, Distr:c‘t'Ceut't

roam:

§

353rd JUDICIAL DISTRICT v 353rd JUDICIAL DISTRICT County, Rnttrigtrez-Mt-:ndoza. § TEXAS MEDICAL BOARD cmd § The TEXAS I\/II':'DlC/\t. BOARD and N/~NCY LESHIKAn, in her OFFICIAL §

in Travis NANCY LESHIKAR, in her OFFICIAL roaroarmroarozcovrau CAPACITY as GENERAL COUNSEL § Amalia CAT’/\Cl'I‘Y as GENERAL COUNSEL

Filed of OF THE TEXAS MEDICAL BONW, § OF THE TEXAS MEDICAL BOARD. TRAVIS COUNTY, TEXAS

D0fendants. § TRAVIS COUNTY. TEXAS Delenclanls.

TEIVIl:'0RA_R)i’ RESTRAINING ORDER On tllis day, the Court llGard the ~pplication for temporary restraining order of On this day, the Court heard the application for temporary restraining order of

Plaintiff, Teladoc, lnG.

Pl.ointiff and Defendants appeared by and

through their attorneys Plaintiff, Teledoc, Inc. Plaintiff and tlefendants appeared by and through their attorneys of record. Afl~::~r considering the ploadings, the affidmvit and attachments in support of of record. After considering the pleadings, the affidavit and attachments in support of tho pleadings. and the oroumcmt of

CL'lunscl,

the Court is of thG opinion that the the pleadings. and the argumr-ant of counsel, the Court is of the opinion that the npplicnllon for a tornpomry restraining order should be granted for the following applicntlon for a temporary restraining order should be granted for the following roHsons: (i) in accorcl~ncH with Tex. Gov't. Code § 2001.038, Plaintiff has asserted fl reasons: (i) in accordzince with Tex. Gov’t. Code § 2001.038. Plaintiff has asserted a V?tlid cmtse or action for declaratory relief with regard to the validity of the Texas valid cause of action for declaratory relief with regard to the validity of the Texas Modic~~~ Board's interpretation of, and amendment to, 22 T.A.C. 190.8(1)(L}; (ii) Medical Board's interpretation of, and amendment to, 22 1'.A.C. 190.8(1)(L); (ii) Dofendc-mls' Interpretation of, nnd

amendment

to, 22 T AC 190.8 (1 )(l) as set out in the Defendants‘ Interpretation of, and amendment to, 22 TAC 190.8 (1)(L) as set out in the G0ner~l CounRel's letter of June 1G, ?.001, is a rulo within the definition of the Texas General Coun.=.el’s latter of June 16. 2001, is a rule within the definition of the Texas A<llllinistr<'ltivo Procedure

1\c:t

(APA); (iii) Plaintiff has shown a probable right to a Aclininistrnlivo Procedure Act (APA); (iii) Plaintiff has shown a probable right to a judgment br:cmtsc when an agcr"'lcy promulgates rt rule without complying with the juclgmenl bricntlse when an agency prorntllgates a rule without complying with the slatutnry rLJ!e-m~t!<ing procedures of the APA, the rule is invalid; (iv) in this matter the statutory rule~maI<ing procedures of the /\PA, the rule is invalid; (iv) in this matter the Toxt-u;; McdicnliJomd failed to comply with the following sections or requirements of the T was Medical Board tailed to comply with the following sections or requirements of the API\: ?.001.023, .0211-, .O~l9 and .033; and (v) Plaintiff will suffer immediate and APA: 2001.023. .024. .029 and .033; and (v) Plaintiff will suffer immediate and irrepi:lri1blo hmm because the proposed

enforcor11enl

of tho Rule will have an immediate irreparable hnrm because the proposed enforcement of the Rule will have an immediate

jar *29 :>Tﬁ Kgcgju ,1 and severo impact on Telndoc's C:1bility to do business in Texas. The Court further finds and severe imp.’-Jot on ‘l‘eladnc's ability to do business in Texas. The Court further finds lll:1t the status quo will be preserved by the entry of this order. that the status quo will be preserved by the entry of this order.

IT IS

THERt:Fom;

OHDEREO, ADJUDGED AND DECREED that Plaintiffs IT is THEREFORE ORDERED. ADJUDGED AND DECREED that Plaintiff's

Applie(ttion for Temporary Hestroining Order be and is hereby GRANTED; Application for ‘temporary Restraining Order he and is hereby GRANTED;

ACCOHDINGl.Y, THE TEXAS MEDICAL BOARD AND NANCY LESHIKAR, IN

ACCORDINGLY. THE TEXAS MEDICAL l:3OARD AND NANCY LESHIKAR. IN

HER OFFICIAL CAPACITY AS G!:NERAL COUNSEL OF THE TEXAS MEDICAl.. HER Ol-'FlC|Al. CAPACITY AS GENERAL COUNSEL OF THE TEXAS MEDICAL BOAHD, and lt1eir agents, servants, employees, and attorneys be and hereby are, ARE BOARD, and their agents, servants, employees. and attorneys be and hereby are, ARE HF.HE£W ORDERED to desist ond refrain from implementing, communicating ond HEREEIY ORDERED to desist and refrain from implementing, communicating and enforcing the rule st1.1ted in the Texas Meclicnl Board's letter dated June 16, 2011, enforcing the rule stated in the Texas Medical Board’s letter dated June 16, 2.011, unloss nnd until the Texas Medical Board properly enf.lcts the rule according to the unless and until the Texas Medical Board properly enacts the rule according to the procodurnl requirem~nts of the APA. pmcediiral requirements of the APA.

IT IS FURTHC:.H ORDEI1ED THI\ T Plaintiff sh~ll execllte and file with the clerk of IT IS FURTHER ORDERED THAT Plaintiff shall execute and file with the clerk of

this Collrl a bond, or cns~deposlt in lieu of bond, in the amount of $ ... Sa:>~- in this Court it bond, or czistbdeposit in lieu of bond. in the amount of $____.£‘__0_¢_-__ in confonnity with Rulo 604 of the TeX(3S liules of Civil Procedure, payable to Defendant conlonnity with Rule 684 of the Texas Rules of Civil Procedure, payable to Defendant and conditioned that

Plc1intiff

will obide by U1o decision which may be made in the and conditioned that Plaintill will abide by the decision which may be made in the causa, F.lnd that PlnintiH will pay nil sums of money and costs that may be adjudged cause, and that Plnintitf will pay all sums of money and costs that may be adjudged fi£JP.linst it if Lhe ternporMy restraining order shall be dissolved in whole or in part. against it it the teniporriry restraining order shall be dissolved in whole or in part.

The clmk sh11ll forthwith, when so requested by Plaintiff and after Plaintiff has The clerk shall forthwith, when so requested by Plaintiff and after Plaintiff has

fHed tl1e bond clescril>ad ab(lVO, ist:;ue a writ of temporary restraining order in conformity filed the bond described nlmvo, issue a writ of temporary restraining order in conformity with the I•1W and the terms of this Orclor. with the law and the terms of this Order.

lT IS FUfHI-IER OHDERED

t11at,

unless extended by agreement of the parties or IT‘ IS FLlR'l'l-ll:‘.R ORDERED that, unless extended by agreement of the parties or

changed by fut ther order or this Colli t, this Order b~~come effective only at such time as changcxt by further order of this Court, this Order become effective only at such time as Tc:lmloc files wilh tt10 clerk of this court a bond in the amount of$ Sao~_. Tcladoc files with the clerk of this court a bond in the amount of $_.__g30 / .

to *30 2 IllS FUHTiif:H OHOEF~ED Uwt PlaintifFs application for a ternpormy injunction IT IS FUR'|'HER ORDERED that Plaintiff's application for a temporary injunction

will be lleard before this court on ~·;?e.p_feM~~r-:dttly g3_, 2011, at will be heard before this court on 2011. at .cl~£~ o'clocl< .p .. m. a::'__0_Qo‘cIocl< _P_.m.

IT IS fURTIIEJ{ ORDEHED that this order expires no later than fourteen days IT is FURTHER ORDERED that this order expires no later than fourteen days

arte:l"

issuance or

LHHil earlier amended by order of the Court, whichever occurs first. alteer issuance or until G-’-Jl'llCr21l]\€:nC|£‘.d by order of the Court. whichever occurs first.

Si£med rn1r.l issued this JJ.~y of July, 2011, at 3ftVo'clock p. .. m. 72/ Signed and issued this __I_'?__ day o|‘July. 2011, at 31‘/po‘clock',_D_‘.m.

-JUDo~~~-- ___- ___, JUDG RESIDING

*31 3

5»)

I\I5:W11v.l t>l5)'W2v.|

Exhibit 4 Exhibit 4

*32 11AR-04-2t2:113 15: 23 201ST DISTRICT COURT 512 854 2268 P.01/03 MclR—a4—2ta13 15:23 2El1ST DISTRICT COURT F‘. B1/3 512 354 2253 «g; Court Texas 2913 5'.0'H9- = : ? r i g u e z - M a t d o z m c l o r k District County,

U‘:

CAUSE NO. D·l-GN-11-002115 CAUSE N0. D-1-GN-11-002115 The

MAR

Travis in TELADOC, INC., IN THE DISTRICT COURT OF § Amalia TELADOC. IN C., IN THE DISTRICT COURT OF of Filed § M Plaintiff, §

Plaintiff.

§ §

§

TRAVIS COUNTY, TEXAS

§ TRAVIS COUNTY, TEXAS v.

§ §

§

TEXAS MEDICAL BOARD and § TEXAS MEDICAL BOARD and

§ NANCY LESHIKAR, in her § NANCY LESHIKAR. In her § OFFICIAL CAPACITY AS § OFFICIAL CAPACITY AS

§ GENERAL COUNSEL OF THE

§

GENERAL COUNSEL or rm»:

§ TEXAS MEDICAL BOARD,

§

TEXAS MEDICAL BOARD,

§

353R 0 JUDICIAL DISTRICT Defendants, § 353“ JUDICIAL msrmcr

Defendants,

ORDER AND JUDGMENT

ognzg AND J§gDGME[‘j'I‘

This matter came before the Court on the 29th

day

of August, 2012 pursuant to the This matter came before the Court on the 29"‘ day of August, 2012 pursuant to the

cross-motions for summary judgment filed by Plaintiff and Defendants. Plaintiff was cross-motions for summary judgment ﬁled by Plaintitf and Defendants. Plaintiff was present through

its counsel of record, Matt Dow, Jackson Walker LLP. Defendants were

present through its counsel of record, Matt Dow, Jackson Walker LU’. Defendants were present through their

counsel

of record, Assistant Attorney General Ted A. Ross, Office present through their counsel of record, Assistant Attomey General Ted A. Ross, Office of the Attorney

General.

of the Attorney General.

Having considered the parties' motions and

responses,

as well as the other relevant Having considered the parties‘ motions and responses, as well as the other relevant

Jnaterial on tile, and having heard the arguments of

counsel, the

Court finds as follows: material on tile. and having heard the arguments of counsel, the Court finds as follows: The June 16, 20\ 1 l~ttcr sent by the General Counsel of the Texas Medical

1. The June i6, 2011 letter sent by the General Counsel of the Texas Medical 1. Board to Teladoc, Inc. is not an unpublished "rule" within the meaning of the Texas Board to Telndoc, Inc. is not an unpublished "rule" within the meaning of the Tcxﬂs Administrative

Procedure Act

("APA"). Administrative Procedure Act (“APA“).

2. Plaintiff has not established that it is entitled to permanent injunctive relief. Plaintiff has not established that it is entitled to permanent injunctive relief. 2. *33 MAR-04-2013 15:24 201ST DISTRICT COURT 512 854 2268 P.02/03 MRR-4-2813 15:24 215T DISTRICT COURT P. B2/3 S12 EIS4 2268

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED

that

Plaintiff's IT IS THEREFORE ORDERED. ADJUDGED AND DECREED that PIaintiﬁ‘s

Motion for Summary Judgment DENIED in accordance with the findings above. Motion for Summary Judgment DENIED in accordance with the ﬁndings above.

IT IS FURTHER ORDERED that Defendants' Motion for Su1nmary Judgment is 1'!‘ IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment is

GRANTED in accordance with lhe findings above. GRANTED in accordance with the ﬁndings above.

IT IS FURTHER ORDERED that the Temporary Restraining Order entered in this IT IS FURTHER ORDERED that the Temporary Restraining Order entered in this

case on July 19. 2011, and extended through the parties' Rule II Agreement dated cast: on July l9. 2011, and extended through the parties‘ Rule ll Agreement dated

V

August l 0, 2011, has expired and is therefore dissolved. August 10, 2011. has expired and is therefore dissolved.

IT IS FURTHER ORDERED that the Clerk of the Court is to return to Plaintiff IT IS FURTHER ORDERED that the Clerk of the Court is to return to Plaintiff

the $500 cash deposit in lieu of bond. . ~ the $500 cash deposit in lieu of bond.

IT IS SO ORDERED, ADJUDGED AND DECREED this 4 Ga'y of March, 11' IS so ORDERED. ADJUDGED AND DECREED this iﬁy of March.

2013. J {;}!fl ;-~- 2013.

/‘. ;'f~frE AMYCLARK MEACHUM THE I-lONOR'A§CE AMY CLARK 1vii;AEr1UM Judge Presiding Judge Presiding

APPROVED AS TO FORM:

APPROVED AS TO FORM: .. ~~ ~-~-·~· .. ·--·-·

%9v- Matt Dow JACKSON WALKER LLP JACKSON WALKER L1,? State Bar No. 06066500 State Bar No. 06066500 I 00 N. Congress, Suite 1100 100 N. Congress. Suite ^[1] 100 Austin, Texas 78701 Austin, Texas 78701 (512) 236·2000 (512)236-2000 (512) 236·2002-

Facsimile

(512) 236-2002 — Facsimile A trorneys for Plaintiff Attarneysfor Plainnﬂ

*34 32325:, MAR-04-2013 15:24 201ST DISTRICT COURT P.03/03 512 854 2268 MI’-IR-Z4-2EI13 15:24 2E|1‘3T DISTRICT COURT S12 E54 2268 F’.E3/E13

> Te~ss ___________ . ______ _ ﬁd . Ross Assistant Attomey General Assistant Attomcy General Sratc

Bar No. 24008890

Srate Bar No. 24008890

OFFICE

OF THE A'ITORNEY GENERAL OF TEXAS OFFICE or THE A'I'I‘ORNEY GENERAL OF TEXAS Administrative Law Division Admirdstrativc Law Division P.O. Box 12548 P.O. Box 12548 Austin. Texas 78711-2548 Austin, Texas 7871 1-2548 Phone: (512) 475-4300 Phone: (512)475-4300 Fax: (512) 457·4674 Fax: (512) 457-4674 Attorneys for Defendants Attorneys for Defendant:

TOTAL P.03

*35 TDTRL F’ . B3

Exhibit 5 Exhibit 5

*36 Filed in The District Court Filed in The District Court of Travis County, Texu of Travis County, Texas

LM MAR 0 ~ 2013 LIV? MAR 0 It 2013

/O.'t.f7A>

M.

A~ /0 "4/7/fr M, At Amalia Rodrlguez·Mtndoza, Clerk Amalia Rodriguez-Mendoza, Clark

Cause No. D-1-GN-1!-002!15 Cause No, D-l—GN~l I-002i 15

TH.ADOC. INC., § IN THE DISTRICT COURT OF 'l‘l€l..-’\DO(.‘. INC.‘ IN THE DISTRICT COURT OF

s ~ Plaintirr. l’l-ttintili‘,

§ V. §

\/I

§ TRAVIS COUNTY, TEXAS

TRAVIS

COUNTY, TEXAS TEXAS MEDICAL BOARD and § r o a r : / . e - o : : o : c 0 u r o v . ~ < . < r . : r ; : v n u r . TEXAS MEDICAL BOARD and NANCY LESHIKAR, in her OFFICIAL § NANCY LESHIKAR, in her OFFICIAL CAPACITY AS GENERAL COUNSEL § CAPACITY AS GENERAL COUNSEL OF THE Tr:XAS MEDICAL BOARD, § O17 THE TEXAS MEDICAL BOARD,

Defendants. 353rd JUDICIAL DISTRICT § Defendants. 353” JUDICIAL DISTRICT

SUPERSEDEAS ORDER

The Cowi, having considered PlaintifTs Motion for Supersedeas Order and Brief in

The Court, having considered Plaintiffs Motion for Supcrsedeas Order and Brief in

Suppoti and the Response of Defendants, finds that the elements of TEX. R. APP. P. 24.2(a)(5) Support and the Response of Defendants, finds that the elements of TEX. R. APP. P. 24.2(a)(5) have been satisfied. Specitically, the Court finds that 1) Defendant Texas Medical Board is a have been satisﬁed. Specifically, the Court ﬁnds that 1) Defendant Texas Medical Board is a governmental entity and Defendant Nancy Leshikar is a defendant because of her official governmental entity and Defendant Nancy Leshikar is a defendant because of her official capacity as general counsel ofTexas Medical Board; 2) on~~~ ~013 the Court signed a capacity as general counsel ofTexas Medical Board; 2) on QOIB the Court signed a Final Judgment in favor of Defendants in their governmental capacity; 3) Defendants have no Final Judgment in favor of Defendants in their governmental capacity; 3) Defendants have no pecuniary interest in this matter; 4) Plaintiff will likely be harmed if enforcement of the Final pecuniary interest in this matter; 4) Plaintiff will likely be harmed if enforcement of the Final Judgment is not suspended in that Plaintiff will no longer be able to conduct business in Texas Judgment is not suspended in that Plaintiff will no longer be able to conduct business in Texas under its current business model; and 5) Defendants and the public will suffer no harm from under its current business model; and 5) Defendants and the public will stiffer no harm from suspension of enforcement of the Final Judgment in this case, or at any rate the harn1 they suffer suspension of enforcement of the Final Judgment in this case, or at any rate the harm they suffer is outweighed by harm Plaintiff would suffer by suspension. is outweighed by harm Plaintiff would stiffer by suspension.

IT IS ORDERED, ADJUDGED and DECREED that the Final Judgment of ffl(;;t~C h

I/via/Lch

IT IS ORDERED, ADJUDGED and DECREED that the Final Judgment ofiiebruaxx‘ j_, 2013 is superseded and suspended during any appeal of such judgment to the Court of 1, 2013 is superseded and suspended during any appeal of such judgment to the Court of Appeals and any other further appeals. Because the TMB will suffer no "actual damages ... Appeals and any other further appeals, Because the TMB will suffer no “actual damages ^[1]

. . from suspension of the judgment," TEX. R. APP. P. 24.2(n)(5), no bond, deposit or security is from suspension of the judgment," TEX. R. APP. I’. 24.2(a)(5), no bond. deposit or security is *37 required. required. 8469J98v.l 8-l(>9.I‘)B\ I

' ~~ ~ l S” ., . Sngnxcal xhis‘ ‘L_r|u_\' 01 Fébfu ~ ~~ /x ' ]'f\.LCvU?"* ‘~ s Signed thi _ rl~l \ ‘ 1/’ /L’ 5 ,,.,,.;_... .___‘_ _ \/W 9

V»

H1/C Honora Ie ,i+\m_\' Clark .\Icz1clm1n Judgl' Presiding Judge Pr«:sidin;_1

*38 N l(:‘)WXv I Exhibit 6 Exhibit 6

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

*39 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

JUDGMENT RENDERED DECEMBER 31, 2014

NO. 03-13-00211-CV

Teladoc, Inc., Appellant Teladoc, Inc., Appellant

v.

Texas Medical Board and Nancy Leshikar, Texas Medical Board and Nancy Leshikar,

in her Official Capacity as General Counsel of the Texas Medical Board, Appellees 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 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 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 the district court’s judgment. Therefore, the Court reverses the district court’s judgment and renders ummary judgment declaring that Texas Medical Board's pronouncements regarding summary judgment declaring that Texas Medical Board’s pronouncements regarding renders Rule 19 .8(1 )(L)(i)(JI) contained in its June 2011 letter are a "rule" under the Administrative .8(l)(L)(i)(lI) contained in its June 2011 letter are a “rule” under the Administrative Rule 19 Procedu e Act and, therefore, invalid under section 2001.035 of that Act. The appellees shall Procedu e Act and, therefore, invalid under section 2001.035 of that Act. The appellees shall pay all c sts relating to this appeal, both in this Court and the court below. pay all c osts relating to this appeal, both in this Court and the court below.

*40 Exhibit 7 Exhibit 7

TEXAS MEDICAL BOARD RULES

*41 TEXAS MEDICAL BOARD RULES

Texas Administrative Code, Title 22, Part 9 Texas Administrative Code, Title 22, Part 9

Proposed Changes - Emergency Rule Proposed Changes - Emergency Rule

Chapter 190

Proposed to Board

Chapter 190 Proposed to Board Disciplinary Guidelines Disciplinary Guidelines Page 1 of 2 Page1 of 2 190.8 Violation Guidelines. When substantiated by credible evidence, the following acts, 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 practices, and conduct are considered to be violations of the Act. The following shall not be considered an exhaustive or exclusive listing. considered an exhaustive or exclusive listing.

(1) Practice Inconsistent with Public Health and Welfare. Failure to practice in an acceptable (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 professional manner consistent with public health and welfare within the meaning of the Act includes, but is not limited to: Act includes, but is not limited to: (A)- (K) no change

- (K) no change

(A)

(L) prescription of any dangerous drug or controlled substance without first (L) prescription of any dangerous drug or controlled substance without first establishing a [proper professional] defined physician-patient relationship[ -with deﬁned physiciampatient relationship[—wi¥h establishing a the patient].

(i) A [proper] defined physician-patient relationship must include, at a (i) A [pr=eper—} deﬁned physiciampatient relationship must include at a minimum[ requires]: minimum[—|=equ-ires}:

(I) establishing that the person requesting the medication is in fact (I) establishing that the person requesting the medication is in fact who the person claims to be; who the person claims to be; (II) establishing a diagnosis through the use of acceptable medical (ll) establishing a diagnosis through the use ofacceptable medical practices[ such as], which includes documenting and performing: practices[-suehras-}, which includes documenting and performing:

(-a-) patient history[;}~ (_-_a_—) patient history[,—}; (-b-) mental status examination[;}~ (Q) mental status examination[,—}_', W physical examination that must be performed by either L-c_-1 physical examination that must be performed by either a face-to-face visit or in-person evaluation as defined in a face-to-face visit or in-person evaluation as defined in Section 174.2(3) and ( 4) of this title[,}. The requirement for Section 174.213) and (4) ofthis title ,—}. The reguirement for a face-to-face or in-person evaluation does not apply to a face—to-face or in-person evaluation does not applv to mental health services, except in cases ofbehavioral mental health services, except in cases of behavioral emergencies, as defined by Texas Health and Safety Code, emergencies, as defined by Texas Health and Safety Code, Section 415.253; and Section 4l5.253' and (-d-) appropriate diagnostic and laboratory testing. 1-d-1 appropriate diagnostic and laboratory testing.

*42 ill.D...An online questionnaire or questions and answers exchanged (111) An online guestionnaire or guestions and answers exchanged through email, electronic text, or chat or telephonic evaluation_Qf through email, electronic text, or chat or telephonic evaluation of or consultation with a patient are inadequate to establish a defined or consultation with a patient are inadequate to establish a deﬁned physician-patient relationship[ by questionnaire is inadequate]; physicianqgatient relationship ([tlijiY.) discussing with the patient the diagnosis and the evidence ([H-I-}I_\{) discussing with the patient the diagnosis and the evidence for it, the risks and benefits of various treatment options; and for it, the risks and beneﬁts of various treatment options; and ([AqV) ensuring the availability ofthe licensee or coverage of the ([-I¥}y) ensuring the availability of the licensee or coverage of the patient for appropriate follow-up care. patient for appropriate follow-up care.

Remainder of rule unchanged Remainder of rule unchanged

*43 Exhibit 8 Exhibit 8

*44 TEXAS MEDICAL BOARD TO: Telemedicine Stakeholders TO: Telemedicine Stakeholders

Interested Parties Interested Parties

FROM: Scott Freshour, General Counsel FROM: Scott Freshour, General Counsel DATE: January 16,2015 DATE: January 16, 2015 SUBJECT: Texas Medical Board's Notification of an Emergency Rule SUBJECT: Texas Medical Board’s Notiﬁcation of an Emergency Rule Dear Telemedicine Stakeholders and Interested Parties: Dear Telemedicine Stakeholders and Interested Parties: Today the Texas Medical Board (Board) adopted an amendment on an emergency basis to Rule Today the Texas Medical Board (Board) adopted an amendment on an emergency basis to Rule 190.8(1 )(L), relating to Violation Guidelines. The purpose of the emergency amendment is to l90.8(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 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 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 l90.8(l)(L), as amended. This emergency rule is effective immediately. The same version of the rule will proceed through the regular rulemaking process. 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 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" 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 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. 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 The two rules, l90.8(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. 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 Board Staff has endeavored to make the two rules compatible to ensure patient safety while allowing greater access to mental health services via telemedicine. greater access to mental health services via telemedicine. The Board looks forward to your input on these issues. The Board looks forward to your input on these issues. C: Mari Robinson, Executive Director C: Mari Robinson, Executive Director

*45 Location Address: Mailing Address Phone 512.305.7010 Locatinn Address: Mailing Address Phone 512.305.7010 333 Guadalupe, Tower 3, Suite 610 MC-251, P.O. Box 2018 Fax 512.305.7051 333 Guadalupe, Tower 3, Suite 610 MC-251, PO. Box 2018 Fax 512.305.7051 Austin, Texas 78701 Austin, Texas 78768-2018 www.trnb.state.tx.us Austin, Texas 78701 Austin, Texas 78768-2018 www.tmb.state.lx.us

Cause No. - - - - - - Cause No.

TELADOC, INC., § IN THE DISTRICT COURT IN THE DISTRICT COURT TELADOC, INc.,

§ Plaintiff, § Plaintiff,

§ § §

v. § JUDICIAL DISTRICT § _ JUDICIAL DISTRICT v. § § § § § § § §

TEXAS MEDICAL BOARD, §

TEXAS

MEDICAL BOARD,

§

Defendant. § TRAVIS COUNTY, TEXAS Defendant. TRAVIS COUNTY, TEXAS

§ TEMPORARY RESTRAINING ORDER 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 Teladoc, lnc. Plaintiff and Defendant appeared by and through their attorneys of record. Aﬁer considering the pleadings, the affidavit and attachments in support of the pleadings, and the 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 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 § order should be granted for the following reasons: (i) in accordance with Tex. Gov‘t. Code § 2001.03 8, Plaintiff has asserted a valid cause of action for declaratory relief with regard to the 2001.038, Plaintiff has asserted a valid cause of action for declaratory relief with regard to the invalidity ofthe Texas Medical Board's emergency amendment to, 22 T.A.C. 190.8(1)(L) as set invalidity of the Texas Medical Board’s emergency amendment to, 22 T.A.C. l90.8(1)(L) as set out in the General Counsel's memo of January 16, 2015; (ii) Plaintiff has shown a probable right out in the General Counsel’s memo oflanuary 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 to ajudgment because no imminent peril to public health, safety or welfare exists and Defendant did not follow the requirements ofTexas Administrative Procedure Act (APA) §2001.034(a)(l)- did not follow the requirements of Texas Administrative Procedure Act (APA) § 200l.034(a)(1)— (2), (b), and (d) and so therefore the rule is invalid; and (iii) Plaintiff will suffer immediate and (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 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 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. ﬁnds that the status quo will be preserved by the entry of this order.

*46 IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff's IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiffs

Application for Temporary Restraining Order be and is hereby GRANTED; Application for Temporary Restraining Order be and is hereby GRANTED;

ACCORDINGLY, THE TEXAS MEDICAL BOARD, and its agents, servants, ACCORDINGLY, THE TEXAS MEDICAL BOARD, and its agents, servants,

employees, and attorneys be and hereby are, ARE HEREBY ORDERED to desist and refrain employees, and attorneys be and hereby are, ARE HEREBY ORDERED to desist and refrain from implementing, communicating and enforcing the rule stated in the Texas Medical Board's from implementing, communicating and enforcing the rule stated in the Texas Medical Board’s letter dated January 16, 2015 until further order of this Court. letter dated January 16, 2015 until ﬁrrther order ofthis Court.

IT IS FURTHER ORDERED THAT Plaintiff shall execute and file with the clerk ofthis IT IS FURTHER ORDERED THAT Plaintiff shall executeand ﬁle with the clerk of this

Court a bond, or case deposit in lieu of bond, in the amount of$ ____ in conformity with Court a bond, or case deposit in lieu of bond, in the amount of $ in conformity with Rule 684 of the Texas Rules of Civil Procedure, payable to Defendant and conditioned that 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 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 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. shall be dissolved in whole or in part.

The clerk shall forthwith, when so requested by Plaintiff and after Plaintiff has filed the The clerk shall forthwith, when so requested by Plaintiff and aﬁer Plaintiff has ﬁled the

bond described above, issue a writ of temporary restraining order in conformity with the law and bond described above, issue a writ of temporary restraining order in conformity with the law and the terms of this Order. the terms of this Order.

IT IS FURTHER ORDERED that, unless extended by agreement of the parties or 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 changed by further order of this Court, this Order become effective only at such time as Teladoc files with the clerk ofthis court a bond in the amount of$ ____ _ ﬁles with the clerk ofthis court a bond in the amount of$

IT IS FURTHER ORDERED that Plaintiffs application for a temporary injunction will IT IS FURTHER ORDERED that Plaintiffs application for a temporary injunction will

be heard before this court on , January __ , 2015, at o'clock o’clock be heard before this court on , 2015, at , January

.m. .11’).

IT IS FURTHER ORDERED that this order expires no later than fourteen days after 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. issuance or until earlier amended by order of the Court, whichever occurs first.

*47 Signed and issued this __ day ofJanuary, 2015, at __ o'clock _.m. o’clock _.m. Signed and issued this day oflanuary, 2015, at

JUDGE PRESIDING

*48 12018141 v.l l20l8l4Iv‘l

3 Exhibit 2 Exhibit 2

*49 Filed In The EJi.eI‘rict Court of Tr:»sVE!~: CCI‘LXl8;',, Tc:x::.e ^[9]

°"%..I.:—LII.!

__ ‘ at_ 5 ____3IS Cause No. D-1-GN-15-000238 Cause No. D«l-GN—l5-000238 Velva L. Price, 9.3:-mi elm

TELADOC, INC., § IN THE DISTRICT COURT TELADOC, INC., IN THE DISTRICT COURT

§

Plaintiff, §

Plaintiff,

§ v. § 53rd JUDICIAL DISTRICT v. 53rd JUDICIAL DISTRICT § §

§

TEXAS MEDICAL BOARD, § TEXAS MEDICAL BOARD,

§ Defendant. § TRAVIS COUNTY, TEXAS TRAVIS COUNTY, TEXAS Defendant.

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 Teladoc, Inc. Plaintiff and Defendant appeared by and through their attorneys of record. After considering the pleadings, the affidavit and attaclunents in support of the pleadings, and the 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 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 § 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 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 invalidity of the Texas Medical Board’s emergency amendment to, 22 T.A.C. 190.8(l)(L) as set out in the General Counsel's memo of January 16, 2015; (ii) Plaintiff has shown a probable right 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 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 (APA) § 2001.034(a)(l)- did not follow the requirements of Texas Administrative Procedure Act (APA) § 200l.034(a)(l)- (2), (b), and (d) and so therefore the rule is invalid; and (iii) Plaintiff will suffer immediate and (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 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 immediate and severe impact on Teladoc’s ability to do business in Texas. The Court fuither finds that the status quo will be preserved by the entry of this order. finds that the status quo will be preserved by the entry of this order.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff's IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiffs

Application for Temporary Restraining Order be and is hereby GRANTED; Application for Temporary Restraining Order be and is hereby GRANTED;

ACCORDINGLY, THE TEXAS MEDICAL BOARD, and its agents, servants,

*50 ACCORDINGLY, THE TEXAS MEDICAL BOARD, and its agents, servants,

employees, and attorneys be and hereby are, ARE HEREBY ORDERED to desist and refrain 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)(1) as stated from implementing, communicating and enforcing the amendments to Rule 190.8(l)(L) as stated in the memorandum from the Texas Medical Board's General Counsel Scott Freshour dated in the memorandum from the Texas Medical Board’s General Counsel Scott Freshour dated January 16, 2015 until further order of this Comi. January 16, 2015 until further order ofthis Court.

IT IS FURTHER ORDERED THAT Plaintiff shall execute and file with the clerk ofthis IT IS FURTHER ORDERED THAT Plaintiff shall execute and file with the clerk of this

0'0 Court a bond, or cash deposit in lieu of bond, in the amount of$ 6()1) in conformity with Court a bond, or cash deposit in lieu of bond, in the amount of $ 55D“) in conformity with Rule 684 of the Texas Rules of Civil Procedure, payable to Defendant and conditioned that 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 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 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. Shall be dissolved in whole or in part.

The clerk shall forthwith, when so requested by Plaintiff and after Plaintiff has filed the The clerk shall forthwith, when so requested by Plaintiff and after Plaintiff has ﬁled the

IT IS FURTHER ORDERED that, unless extended by agreement of the parties or IT IS FURTHER ORDERED that, unless extended by agreement of the parties or

(TD

ﬁles with the clerk of this court a bond in the amount of $ 55”

.

IT IS FURTHER ORDERED that Plaintiffs application for a temporary injunction will IT IS FURTHER ORDERED that Plaintiffs application for a temporary injunction will

be heard before this court on ~ , f~;;., 2015, at q: tiV o'clock tC£.07«u3. J‘, 2015, at C! :09 o’clock be heard before this court on ,-.l'-emtary- t6._.m. Am.

IT IS FURTHER ORDERED that this order expires no later than fourteen days after 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. issuance or until earlier amended by order of the Court, whichever occurs first.

*51 Signed and issued this :2.0 day of January, 2015, at 3:43 o'clock a-.m. Signed and issued this 20 day oflanuary, 2015, at 5:”3 o’clock £..m.

~v c-;J. dJ.~ ‘D. Exam; E49,, JUDGE PRESIDING JUDGE PRESIDING

1201814lv.l l20l8l4|v.|

2 Exhibit 3 Exhibit 3

THE TEXAS MEDICAL BOARD

*52 THE TEXAS MEDICAL BOARD

ORDER ADOPTING ORDER ADOPTING EMERGENCY RULE EMERGENCY RULE

22 Texas Administrative Code

Chapter 190.8(1 )(L)(i)(Il) Chapter l90.8(l )(L)(i)(1l)

Violation Guidelines Violation Guidelines

The Texas Medical Board (Board) adopts an amendment on an emergency basis to Chapter 190, The Texas Medical Board (Board) adopts an amendment on an emergency basis to Chapter 190, relating to Disciplinary Guidelines, I 90.8, Violation Guidelines. relating to Disciplinary Guidelines, 190.8, Violation Guidelines. The Board adopts an amendment on an emergency basis to Chapter 190, relating to Disciplinary The Board adopts an amendment on an emergency basis to Chapter 190, relating to Disciplinary Guidelines, Rule I 90.8, Violation Guidelines. The emergency amendment to Rule190.8 adds Guidelines, Rulel90.8, Violation Guidelines. The emergency amendment to Rule190.8 adds language to paragraph (l)(L) in order to clarify a "defined physician-patient relationship" and the language to paragraph (])(L) in order to clarify a "deﬁned physician-patient relationship" and the requirements for establishing same before prescribing drugs. The amendment clearly defines 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 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 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. an in—person evaluation, as those terms are deﬁned under existing board rules. Rule 190.8(1)(1) was originally challenged by Teladoc in State District Court in Travis County, Rule l90.8(l)(L) was originally challenged by Teladoc in State District Court in Travis County, Texas. Teladoc claimed that a June 2011 letter, from Nancy Leshikar (former General Counsel of Texas. Teladoc claimed that a June 2011 letter, from Nancy Leshikar (former General Counsel of the Board) to Teladoc, stating that Teladoc's· business model of providing medical services, the Board) to Teladoc, stating that Teladoc's'business model of providing medical services, including prescribing medications/drugs without establishing a physician-patient relationship including prescribing medications/drags without establishing a physician-patient relationship through a face-to-face visit, was in violation of Rule 190.8(1)(1), constituted improper through a face-to-face visit, was in violation of Rule l90.8(l)(l..), constituted improper rulemaking and was invalid. The State District found in favor of the Board and determined that 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 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. 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 03-13-00211-CV, Taladoc, Ina, Appellantrvs. Texas Medical Board and Nancy Leshikar, in her Qfficial Capacity as General Counsel of the Texas Medical Board, Appellees. Again, Teladoc Oﬂicial 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 claimed that a June 2011 letter, from Nancy Leshikar (former General Counsel of the Board) to Teladoc, constituted improper rule making and was invalid, as it was not properly promulgated Teladoc, constituted improper rule making and was invalid, as it was not properly promulgated under the Texas Government Code. On December 31, 2014, the Third Court of Appeals ruled under the Texas Government Code. On December 31, 2014, the Third Court of Appeals ruled that the June 2011letter interpreting Board Rule 190.8(1)(L)(i)(Il) indeed constituted improper that the June 2011 letter interpreting Board Rule 190.8(l)(L)(1)(ll) indeed constituted improper rulemaking and was invalid. rulemaking and was invalid. The amendment is adopted on an emergency basis under §2001.034 of the Texas Government 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 Code. The Board has determined tht; 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 to establish a deﬁned physician-patient relationship before prescribing drugs. The Board further determined that the December 31 ', 2015 ruling by the Third Court of Appeals created an absence determined that the December 31‘, 2015 ruling by the Third Court of Appeals created an absence of such parameters and requirements, thereby allowing practitioners the ability to prescribe 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 drugs, without ever seeing a patient; thus resulting in imminent peril to public health, safety and welfare.

' welfare. *53 The Board finds that prescribing drugs to n patient without first evnluating and examining the The Board ﬁnds that prescribing drugs to a patient without first evaluating and examining the pntient in n face-to-face visit or in-person evnl,uation makes it impossible for a practitioner to patient in a face-to-face visit or in-person evaluation makes it impossible for a practitioner to insure proper and accurate diagnosis and treatment; to insure proper prescribing practices are insure proper and accurate diagnosis and treatment; to insure proper prescribing practices are followed; to insure the drugs prescribed are therapeutic, i.e., the medications prescribed are followed; to insure the drugs prescribed 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 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. evaluation or face-to-face visit); and/or prevent overuse/abuse of drugs of any kind. The absence of n required defined physician-patient relationship further results in a complete The absence of a required deﬁned physician-patient relationship further results in a complete lack of review of patient records and allows a patient with a subjective complaint, not verified, to 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 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 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 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, 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 which can result in bacterial overgrowth that thereby lead to the “superbugs, such as MRSA and other antibiotic resistant organisms. other antibiotic resistant organisms. Prescribing drugs without a face-to-face visit or in-person evaluation is not the generally 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 accepted medical practice and does not meet the standard of care. Without requirements for a practitioner to examine and evaluate a patient, by a face4o-face visit or in-person evaluation, 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 prior to prescribing drugs, seriously compromises and undermines the Board‘s statutory mandate to protect the public health and welfare. to protect the public health and welfare. The amendment to Rule 190.8( l)(L) insures patient safety by setting forth specific parameters The amendment to Rule l90.8(l)(L) insures patient safety by setting forth speciﬁc parameters and requirements for a practitioner to estabUsh a defined physician-patient relationship prior to and requirements for a practitioner to establish a defined physician-patient relationship prior to prescribing drugs and, thereby, removes the ~tirrent imminent peril to the public health, safety prescribing drugs and, thereby, removes the current imminent peril to the public health, safety and welfare. The amendment to Rule 190.8(1 )(L) will protect patient health and safety by and welfare. The amendment to Rule l90.8(1)(L) will protect patient health and safety by requiring the use of acceptable medical practices that comply with state law and medical board 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 medicine or rules, while still providing ample access to medical treatment, via traditional medicine or telemedicine. ‘ ·

= telemedicine. This amendment to Rule 190.8(1)(1) does not expand the requirements for treating patients, via This amendment to Rule l90.li(l)(L) does not expand the requirements for treating patients, via traditional medicine or telemedicine, but rather, clarifies existing requirements for prescribing 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 pr11-ctices, the and is consistent with the board’s existing rules related to acceptable medical practices, the current requirements for medical record documentation of patient evaluations and examinations, current requirements for medical record documentation of patient evaluations and examinations, and existing requirements for the practice oftelemedicine. 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 Based on the Third Court of Appeal’s ruling, on January I6, 2015. at an emergency meeting of the Board, the Board adopted an amendment to Rule190.8(l)(L) relating to Violation Guidelines, the Board, the Board adopted an amendment to Rulel 90.8(l)(L) relating to Violation Guidelines, to be effective immediately. The Notice of Adoption and emergency Rule 190.8(1)(L) were filed to be effective immediately. The Notice of Adoption and emergency Rule l90.8(l)(L) were ﬁled with the Secretary of State on January 16, 2015 to be published in the Texas Register. with the Secretary of State on January i6, 201 S to be published in the Texas Register. The amendment is adopted on an emergency basis under §2001.034 of the Texas Government The amendment is adopted on an emergency basis under §200l.034 of the Texas Government Code and under the authority ofTexas Occupations Code Annotated, §§153.001, which provides Code and under the authority of Texas Occupations Code Annotated, §§I 53.001, which provides authority for the Board to adopt rules and bylaws as necessary to govern its own proceedings, 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. perform its duties. regulate the practiceof medicine in this state, and enforce this subtitle.

, I *54 . . ^[1] t' The 13ourd certifies that the emergency udopt,ion or the proposed rules has been reviewed by The Board certiﬁes that the emergency adoption of the proposed rules has been reviewed by legal counsel and found to be u valid exercise of the agency's legal authority. legal counsel and found to be u valid exercise of the agency's legal authority. lt is therefore ORDERED by the Board that the proposed rules are ADOPTED on an emergency It is therefore ORDERED by the Board that the proposed rules are ADOPTED on an emergency basis, as stated above. A copy of the amended rules is incorporated in this ORDER. basis. as stated above. A copy of the nmended miles is incorporated in this ORDER, Signed and entered as of January 16, 2015. Signed and entered as oflanuary 16, 2l)|5. ~~~~~~~~sO~~-------~ Michael rambula, M.D., R.P 1., President ·

' mmbula, M.D., R.P 1.. President Texas Medical Board Texas Medical Board