Texas Board of Nursing Adopts New Emergency Amendments to Rule 217.24 Effective January 4, 2021

The Texas Board of Nursing (Board) met in an emergency meeting via teleconference on December 29, 2021, to re-adopt emergency amendments to §217.24, relating to Telemedicine Medical Service Prescriptions, pursuant to a finding of imminent peril to the public health, safety, and welfare, which requires adoption in fewer than thirty (30) days' notice, as authorized by Tex. Gov't. Code §2001.034.

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

The Board held a public meeting on June 8, 2020, to consider the adoption of an emergency rule to permit advanced practice registered nurses to treat chronic pain with scheduled drugs through the use of telemedicine medical services under certain conditions during the COVID-19 pandemic. At the conclusion of the meeting, the Board voted to adopt the emergency amendments to 22 Tex. Admin. Code §217.24(e)(1).  The emergency amendments took effect June 8, 2020; were published in the Texas Register on June 19, 2020; and expired on July 7, 2020.   Because the continuation of the effects of the COVID-19 pandemic necessitated the continuation of the emergency rule beyond the July 7, 2020 expiration date, the Board held a public meeting on July 6, 2020, and again adopted emergency amendments to §217.24(e)(1).  The emergency amendments took effect July 7, 2020; were published in the Texas Register on July 17, 2020; and expired on September 4, 2020.  However, the COVID-19 disaster declaration remained in effect past that date. Therefore, the Board determined that the continuation of the effects of the COVID-19 pandemic necessitates the continuation of an emergency rule beyond the September 4, 2020 expiration date. The emergency amendments took effect September 5, 2020, and expired on November 3, 2020. The Board again considered the need for the adoption of emergency amendments to §217.24(e)(1) in public meeting on November 4, 2020, and voted to adopt emergency amendments to §217.24(e)(1) at the conclusion of that meeting. The emergency amendments took effect November 4, 2020, and will expire on January 3, 2021. The Board has determined that the continuation of the effects of the COVID-19 pandemic necessitates the continuation of an emergency rule. The new emergency rule will take effect on January 4, 2021, and will be published in the Texas Register on January 15, 2021.

The re-adoption of emergency amendments to §217.24(e)(1) was immediately necessary to allow APRNs to continue to provide necessary treatment to established patients with chronic pain while mitigating the risk of exposure to COVID-19. Under the emergency amendments, an APRN may treat chronic pain with scheduled drugs through use of telemedicine medical services if a patient is an established chronic pain patient of the APRN, is seeking a telephone refill of an existing prescription, and the APRN determines that the telemedicine treatment is needed due to the COVID-19 pandemic.  Further, the medical records must document the exception and the reason that a telemedicine visit was conducted instead of an in-person visit.  The APRN must exercise appropriate professional judgment in determining whether to utilize telemedicine medical services for the treatment of chronic pain with controlled substances.  The emergency amendments only apply to those APRNs whose delegating physicians agree to permit them to issue re-fills for these patients, and the services provided are limited to refills of controlled substances in Schedules III through V.  Finally, these emergency amendments are only in effect for a period of 60 days or the duration of the time period that the Governor’s disaster declaration of March 13, 2020 in response to the COVID-19 pandemic is in effect, whichever is shorter. This adoption of the emergency rule will be published in the Texas Register on January 15, 2021.

The emergency rule that became effective on January 4, 2021, may be found in the highlighted language as follows:

§217.24. Telemedicine Medical Service Prescriptions.
            (a) – (d)  (No change.)
            (e) Limitation on Treatment of Chronic Pain. Chronic pain is a legitimate medical condition that needs to be treated, but must be balanced with concerns over patient safety and the public health crisis involving overdose deaths. The Legislature has already put into place laws regarding the treatment of pain and requirements for registration and inspection of pain management clinics. Therefore, the Board has determined clear legislative intent exists for the limitation of chronic pain treatment through a telemedicine medical service.
                        (1) Treatment of chronic pain with scheduled drugs through use of telemedicine medical services is prohibited, unless otherwise allowed under federal and state law.  For purposes of this section, "chronic pain" means a state in which pain persists beyond the usual course of an acute disease or healing of an injury. Chronic pain may be associated with a chronic pathological process that causes continuous or intermittent pain over months or years.
                                   (A) Notwithstanding paragraph (e)(1), treatment of chronic pain with scheduled drugs through use of telemedicine medical services is not prohibited by this rule if the patient is an established chronic pain patient of the APRN and is seeking telephone refill of an existing prescription, and the APRN determines that such telemedicine treatment is needed due to the COVID-19 pandemic.

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

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

                                   (D) The emergency amendment of this rule effective January 4, 2021, shall be in effect for only 60 days or the duration of the time period that the Governor’s disaster declaration of March 13, 2020 in response to the COVID-19 pandemic is in effect, whichever is shorter.