in Re Teladoc, Inc.

ACCEPTED
03-15-00061-CV
03-15-00061-CV 3913131
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/27/2015 12:04:11 PM
JEFFREY D. KYLE
CLERK
D-l-GN-15-000238
Cause No. D-1-GN-15-000238
Cause
TELADOC, INC.,
TELADOC, §§ THE DISTRICT
IN THE
IN COURT
DISTRICT COURT
FILED IN
Plaintiff, §§ 3rd COURT OF APPEALS
AUSTIN, TEXAS
v. §§ 53rd JUDICIAL DISTRICT
JUDICIAL DISTRICT
1/27/2015 12:04:11 PM
§§
JEFFREY D. KYLE
TEXAS MEDICAL BOARD,
TEXAS MEDICAL BOARD, §§ Clerk
Defendant.
Defendant. §§ TRAVIS TEXAS
COUNTY, TEXAS
TRAVIS COUNTY,
MOTION TO
MOTION TO TRANSFER
TRANSFER
TO THE
TO HONORABLE THIRD
THE HONORABLE COURT OF
THIRD COURT APPEALS
OF APPEALS
COMES NOW
COMES NOW Honorable Gisela Triana, Judge of the 200 th
2001]‘ District Court of

by Teladoc, Inc., Plaintiff in Cause
Travis County, Texas, joined by D-l-GN-l5-
Cause No. D-1-GN-15-

000238 pending in this court, and requests that this action be transferred to the
000238

Honorable Court of Appeals for the Third Court of Appeals District pursuant to

TEX.
T GOV'T
EX. G CODE
OV'T C ODE §
§ 2001.038(f) show as follows:
would show
2001 .038(f) and as grounds therefor would

I.

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

adopted by
by the Texas Medical Board (“TMB”) on January 16, A true and
16, 2015. A

copy of the Petition is attached as Exhibit 1.
correct copy 1.

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

by its general counsel and an
January 20, 2015, with Defendant represented by

General. After argument
Assistant Attorney General. by both parties the Court issued its
by

MOTION TO
MOTION TO TRANSFER
TRANSFER Page 11
Temporary Restraining Order. A true and correct copy of the Temporary
A

Restraining Order is attached as Exhibit 2.

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

not agreed to extend the temporary restraining order despite having done so in the

which resulted in the Court of
previous litigation which of Appeals Opinion of

December 31, 2014.
December

II.

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

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

TMB’s Order states in part as follows:
attached as Exhibit 3. The TMB’s follows:

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

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

parameters and requirements, thereby allowing practitioners the

ability to prescribe drugs, without ever seeing a patient;
patient; thus resulting

imminent peril to public health, safety and welfare.”
in imminent

The TMB’s interpretation of
The Court does not agree with TMB’s of the December 31,
31,

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

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

members of
numerous members
employers and numerous who have used the
of the public in Texas who

2
 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: Dow
/s/ Matt
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
 CERTIFICATE OF
CERTIFICATE CONFERENCE
OF CONFERENCE
Tex. R. App. P.10.1(a)((5),
Pursuant to Tex. was held on January 22,
P.10.1(a)((5), a conference was

Ted Ross, Assistant Attorney General, counsel for Respondent
2015 with Ted
2015

concerning the merits of this motion. Respondent opposes the motion.

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

CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
on this 27
This is to certify that on th
27”‘ day of January, 2015, a true and correct
copy of the foregoing document
copy of was served via
document was on the parties listed
Via fax and email on
below:
below:

Ted Ross
Ted
of the Attorney General of
Office of of Texas
Box 12548
P.O. Box 12548
78711-2548
Austin, Texas 78711-2548
512-474-1062
Fax: 512-474-1062
Ted.Ross@texasattomeVgeneral.goV
Email: Ted.Ross@texasattorneygeneral.gov

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

l203l78lv.3
12031781v.3
4
Exhibit 1
Exhibit
 1/20/2015 10:21:45
1/20/2015 AM
10:21 :45 AM
Velva Price
Velva L. Price
Clerk
District Clerk
D-1-GN-15-000238
D-1-GN-15-000238 Travis °°""‘V
T"""'S County
Cause
Cause NO_
No. - - - - - - D-1-GN-15-000238
D-1-GN-15-000238

TELADOC, INC.,
TELADOC, lNC., § THE DISTRICT
IN THE
IN COURT OF
DISTRICT COURT OF
Plaintiff, §
§
v. §
§
f03<0'if403f47><0'3€4O')f47><0'3E-0':C(7J
TRAVIS
TRAVIS COUNTY, TEXAS
COUNTY, TEXAS
§
§
§
TEXAS MEDICAL BOARD,
TEXAS MEDICAL BOARD, §
Defendant. § 533 JUDICIAL DISTRICT
53rd JUDICIAL DISTRICT

PLAINTIFF'S ORIGINAL PETITION
VERIFIED ORIGINAL
PLAINTIFF’S VERIFIED PETITION FOR DECLARATORY JUDGMENT
FOR DECLARATORY JUDGIVIENT
AND APPLICATION
AND FOR INJUNCTIVE
APPLICATION FOR INJUNCTIVE RELIEF
RELIEF
TO
TO THE HONORABLE JUDGE
THE HONORABLE JUDGE OF THE DISTRICT
OF THE DISTRICT COURT:
COURT:

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

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

LAWSUIT
THIS LAWSUIT
THIS

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

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

exists and emergency rule (22 T.A.C. §§190.8(1)(L))
and issues an emergency 190.8(1 )(L)) Texas
of the Texas
in violation of

Administrative Procedure
Procedure Act (“APA”). Accordingly, Teladoc
Act ("APA"). Teladoc asks for declaratory relief from
from

the Court TMB’s emergency
Court declaring that the TMB's emergency rule is invalid and of the
and enjoining enforcement ofthe

emergency rule.
emergency

DISCOVERY
DISCOVERY

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

Procedure 190.3.
Procedure
 AND SERVICE
PARTIES AND
PARTIES SERVICE OF PROCESS
OF PROCESS

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

Travis County, Texas.

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

Texas Medical
Texas Medical Practice Act, Chapters 151-159 Texas Occupation
of the Texas
151-159 of and lawful rules
Occupation Code, and

and regulations promulgated
and TMB may
promulgated pursuant to that Act. TMB may be
be served with process by
by serving

Mari Robinson, at 333
its Executive Director, Mari Tower 3, Suite 610, Austin, Texas
333 Guadalupe, Tower Texas

78701.
78701.

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

CODE 2001.038 and
CODE §§ 2001.038 and the Uniform Judgment Act, TEX.
Unifonn Declaratory Judgment TEX. Crv. & REM.
PRAC. &
CIV. PRAC. CODE
REM. CODE

§§ 37.001 et seq. Teladoc
Teladoc brings its application for injunctive relief under of TEX.
under the authority of TEX.

PRAC. &
CIV. PRAC. & REM. CODE § 65.001, et seq.
REM. CODE§

FACTS

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

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

Code (the "Rule")
Code was adopted, after proper notice and
“Rule”) was comment under the Administrative
and comment

Procedures Act “APA”). That section, which
Act (the "APA"). which has not been
been changed amended materially
changed or amended

since its adoption, prohibits the prescription of “any dangerous drug
of "any drug or controlled substance
1
The Rule states
patient?” The
first establishing a proper professional relationship with the patient."
without first

further:

(i) A proper relationship, at a minimum
(i) A minimum requires:

'

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

2
 who the person claims
(I) establishing that the person requesting the medication is in fact who
to be;

(ll) establishing a diagnosis through the use of
(II) of acceptable medical practices such as
patient history, mental status examination, physical examination, and and appropriate
diagnostic and An online or telephonic evaluation by
and laboratory testing. An by questionnaire is
inadequate;

and the evidence for it,
(III) discussing with the patient the diagnosis and it, the risks and
and
benefits of various treatment options; and
benefits of

of the licensee or coverage of
(IV) ensuring the availability of of the patient for appropriate
follow-up care.

6. Texas-based company,
Teladoc, a Texas-based and largest provider of
company, is both the first and of

physician
physician telehealth consultations in the United States. Since introducing its cost effective,

modern approach to Texas
modern TeIadoc’s services have been incorporated into both private
Texas in 2005, Teladoc's

and public health plans. Teladoc
and now provides its services to the entire commercially-insured
Teladoc now

population of Aetna of Texas, as well as several large group
Aetna in the State of group employers such as

AT&T, Home Depot, Rent-
AT&T, Home Rent- A-Center, MetroPCS, and
and MetroPCS,
A—Center, and and over three hundred
hundred smaller employers

Aetna plans. Teladoc
non- Aetna
through non- members of
Teladoc also covers approximately 800,000 members of the Texas
Texas

State Medicaid managed care population, approximately 25,000 individuals within the Medicare
Medicaid managed Medicare

number of
and a number
population, id., and Human Services
of children in foster care for the Texas Health and Human

Commission.
Commission.

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

filed
tiled against Teladoc or its affiliated physicians for Teladoc telephone consultations. Indeed,

was only one
there was one prior instance in which TMB even inquired whether a Teladoc physician
which the TMB

might have
might have violated Section 190.8(1
l90.8(1)(L). TMB notified
)(L). In February 2006, the TMB notified Dr. Robert

Kramer, a Teladoc physician, that it was investigating him
it was him for a potential "failure
“failure to establish the

patient-physician relationship as per Board rule 190.8(1
Board l90.8(1)(L).” and
)(L)." See Exhibit 11 attached hereto and

3
 That investigation lasted less than four months,
by reference for all purposes. That
incorporate herein by

being 2006 "because
June 2006
being dismissed in June “because the Board was insufficient evidence
Board determined there was evidence to

of the Medical
prove that a violation of Act occurred."
Medical Practice Act occurred.”

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

TMB made
years, the TMB made no
no efforts to prevent Teladoc
Teladoc or Teladoc from
Teladoc affiliated physicians from

ended in no
performing telephone consultations; indeed, the only inquiry ended On June 16,
no action. On

201 1, however, TMB’s
2011, TMB's general counsel unexpectedly sent Teladoc
Teladoc a letter threatening

disciplinary action against and legal action against Teladoc. See
its physician contractors and See Exhibit

and incorporate herein by
2 attached hereto and The letter asserted that
by reference for all purposes. The

Teladoc was
Teladoc was "in Board rules”
“in violation of Board rules" and was "jeopardizing
and was “jeopardizing [the] respective licenses" of its
licenses” of

physicians because TMB
“does not believe that physicians in Texas
because the TMB "does Texas can rely op
on [Teladoc's]
[Teladoc’s]

compliance with Texas
representations as to compliance Board rules."
Texas Board rules.”

9. The of this TMB
The basis of TMB letter was Board’s policy and
was the Board's Board rule
and opinion that Board

l90.8(l)(L) required a "face-to-face"
190.8(1)(1) of a patient before any physician could
“face-to-face” examination of could

dangerous drug or controlled substance. The
prescribe any dangerous quoted words
The quoted do not appear in the
words do

Rule. No the letter was
ofthe
No prior notice of was given to Teladoc.

10. Specifically, the TMB
TMB rejected Teladoc’s
Teladoc's plain language of Section
language interpretation of

l90.8(l)(L),
190.8(1 which requires that before prescribing medication, aa doctor must
)(L ), which must "establish[]
‘‘establish[] a

diagnosis through the use of
of acceptable medical practices such as patient history, mental status

and appropriate diagnostic and
examination, physical examination, and and laboratory testing." 22 TEX.
testing.” 22 TEX.

ADMIN. CODE §§ 190.8(1
ADMIN. CODE )(L)(i)(II).
l90.8(l)(L)(i)(II). Teladoc read the words
Teladoc “such as"
words "such as" to indicate that the

medical
medical practices listed are illustrative, being of which constituted "acceptable
of a type which “acceptable medical

meet the requisites of
practices,” but not required in their totality to meet
practices," ofthe
the rule.

4
 11.
II. The TMB
The TMB asserted instead that every practice listed in Section 190.8(1 )(L)(i)(II)
190.8(l)(L)(i)(II)

after “such as"
"such as” is required to satisfY “acceptable medical practices" standard. The
satisfy the "acceptable TMB
The TMB

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

relationship” under
physician/patient relationship" l90.8(l)(L).
under Section 190.8(1 TMB concluded, continuing
)(L). Thus, the TMB

Teladoc model
to follow the Teladoc “will lead to disciplinary action against the participating doctors in
model "will

the program," TMB
program,” as the TMB "will necessary” should Teladoc
“will take all legal steps as are necessary" Teladoc continue to

conform with Texas
advertise that its services conform Texas law.

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

TMB’s interpretation of
Texas, seeking a declaration that the TMB's of Section I90.8(l)(L)
190.8(1)(L) is void for the

TMB’s failure to comply
TMB's APA notice and
comply with APA and comment and an injunction to
comment requirements and

TMB
from enforcing
prevent the TMB from new interpretation against Teladoc
enforcing its new Teladoc and
and similar telehealth

companies. The gravamen
companies. The of the complaint was
gravamen of new interpretation was
was that this new was so inconsistent

TMB’s historical interpretation and
with the TMB's and the text of
of Section 190.8(l)(L)
l90.8(l)(L) that it
it constituted a

new
new rule, which was invalid for want
which was want of comment.
of notice and comment.

13.
I3. The TMB opposed
The TMB opposed emergency
emergency injunctive relief on the grounds that its

interpretation was
was consistent with the text and I90.8(1 )(L), and
and prior interpretation of Section 190.8(l)(L), and

that Teladoc's was a premature
Teladoc’s action was TMB’s permissible exercise of
premature attack on the TMB's of its

On July I9,
adjudicative authority. On Hon. John
201], the Hon.
19, 201I, John Dietz granted a temporary restraining

order, barring the TMB from
TMB from enforcing the rule as contained in the June I6
16 letter. See Exhibit 3

and incorporate herein by
attached hereto and On August
by reference for all purposes. On August I10, 2011,
0, 20 II, the

TMB agreed to extend
TMB TRO during the pendency
extend the TRO of the case.
pendency of

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

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

5
 TMB. See
the TMB. See Exhibi and incorporate herein by
4 attached hereto and
Exhibit 4 The
by reference for all purposes. The

suspended enforcement
court also suspended of the judgment
enforcement of finding that the
pending appeal, however, finding
judgment pending

harm to Teladoc
harm Teladoc fro
from not suspending enforcement was greater than any potential harm
enforcement was harm that

would ca Jse
supersedeas would TMB or the public. See
se to the TMB and incorporate
See Exhibit 5 attached hereto and

herein by reference for all purposes. The TMB was
The TMB was thus prohibited from
from enforcing its

of Secti
interpretation of Section 190.8(l)(L)
n 190.8(1 and Teladoc
)(L) against Teladoc, and Teladoc has continued to operate as itit

has since 2005.

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

summary judgment
summary summary judgment
nd rendered summary
judgment a nd TMB’s pronouncements
judgment declaring that TMB's pronouncements

Rule 190.8 1l)(L)(i)(II)
regarding Rule “rule” under
2011 letter are a "rule"
)(L )(i)(II) contained in its June 2011 APA
under the APA

and, therefore, invali under section 2001.035
invalic under of that Act.
2001.035 of See Exhibit 6 attached hereto and
See and

by reference
incorporate herein by eference for all purposes.

No "Emergency"
No “Emergency”

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

“purpose of
"purpose of the emer
emergency amendment is to protect the public health and
ency amendment and welfare by
by clarifying

face—to-face vi
that a face-to-face it or in-person evaluation
visit is required before a practitioner can issue a

prescription for drugs "” See and incorporate herein by
See Exhibit 7 attached hereto and by reference for all

Among ot
purposes. Among other amendment replaces "such
er things, the amendment “such as" “which includes
as” with "which

documenting and per rming.”

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

and 13
February 12 and meeting for consideration for publication and
oard meeting comment according to
and comment

the regular rulemaki~g
rulemakiiiig process. by
See Exhibit 8 attached hereto and incorporate herein by

Teladoc and other affected parties
purposes. This process, if followed, will give Teladoc
reference for all purpc)ses.

6
 views and arguments
and physicians opportunity to submit data, views of
arguments before attempted adoption of

any rule proposed
any proposed by TMB (200
by TMB (2001.029).
1.029).

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

from 16, 2015 to instigation of
from January 16,2015 of proper rule-making
rule-making procedure under APA, if done,
under the APA,

any of need
any claim or suggestion of need for protection of, imminent peril to, the public health and
ofi or imminent and

welfare by TMB is the essence of
by TMB by TMB.
of arbitrary and capricious action by TMB. In deposition given

December 6, 2011, the Executive Director of
on December
in the previous lawsuit on TMB stated that she
of TMB

“work[s] with the General Counsel's
"work[s] we go
Counsel’s office and we Rules and
go over the Rules we discuss those rules
and we

with the Board. We the — there's
We ensure that the- there’s not going to be
be a rule passed before it's
it’s published

with time for comment.
comment. ... as
The Board
.. " The
. nowihas
Board now APA twice by
·has violated the APA by promulgating

comment and
“rules" without allowing affected persons opportunity for comment
"rules" complying with
and without complying

APA.
the APA.

BRIEF IN
BRIEF SUPPORT
IN SUPPORT

Imminent
Imminent Peril

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

emergency rule:
following to adopt an emergency

((1)
1) the rule adopted;

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

(3)
(3) written reasons for the agency's findings that
agency’s findings

imminent peril to the public health, safety, or welfare exists
(a) an imminent

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

The words
The words suggest aa soon-to-be-upon-us public disaster not merely a serious
policy concern ... Imminent
. . . means soon but not yet. If a problem
Imminent means problem is here, it
it is not

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

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

as a corollary, an
an agency can not allow a distant problem become an imminent
problem to become imminent peril by
by
promulgate an emergency
inaction and then promulgate whether an agency
emergency rule. . . the test is whether
. .

reasonably could andand should have problem in time to address itit by
have foreseen the problem by full
filll
2
procedure.2
procedure.

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

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

of agency
assertions of of rules. As
by adoption of
agency authority by of Appeals
As the Austin Court of Appeals stated in its

“We must
opinion, "We intended.”
must give effect to these important safeguards, as the Legislature has intended."

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

Texas in 2005; 2) the TMB
Texas 2006 but dismisses the
Teladoc physician in 2006
TMB investigates a Teladoc

investigation; 3) the TMB of June
TMB sends a letter of June 16, 2011
201 1 to Teladoc Teladoc and
Teladoc threatening Teladoc and its

physicians; and
and finally, Teladoc began
afier Teladoc
finally, almost ten years after began doing business in Texas
Texas and sixteen

days afier Court of
after losing at the Court TMB declares an emergency.
of Appeals, the TMB no
There is no
There

imminent peril.
imminent There no emergency.
There is no There is only a state agency
There agency ignoring its legal

limitations in a blatant attempt to get its way.

The harm
The Teladoc
harm to Teladoc

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

do business in Texas. Teladoc's
ability to do Teladoc’s physicians cannot conduct telephonic consultations or

by doing so without first conducting a face-to-face
prescribe medications if they believe that by

examination and
physical examination and the other practices listed in the Rule, they will be subjected to

by the TMB.
disciplinary action by TMB.

OF ACTION
CAUSE OF
CAUSE ACTION
Request for declaration of rights
Request under the Rule
ri2hts under Rule

22
McCown, Opinion
F. Scott McCown, on Temporary
Opinion on injunction, I Tex. Admin.
Temporary Injunction, 1 I6, 27-30
Admin, L.J. 16, 27-30 (1992)
(1992)

8
 24. Teladoc TMB’s emergency
Court declare that the TMB's
Teladoc requests that the Court emergency rule is invalid

two reasons. First, there is no
for two imminent peril to public health, safety or welfare and
no imminent TMB has
and TMB

made no
made no such
such finding.
finding. Second, TMB did not endeavor
Second, TMB endeavor to state in writing reasons to support aa

finding of
finding of the requirements of APA §§ 2001.034(a)(l)-(2),
of APA 200l.034(a)(1)-(2), (b), and imminent peril to the public
and imminent

one had
health, safety or welfare if one had been made. See Methodist Hospitals of
been made. of Dallas v. Texas

Industrial Accident Board, 978 S.W.2d
978 S. App. -Austin,
651 (Tex. App.
W.2d 651 no writ).
—Austin, 1990, no

TRO
Application for TRO
Application

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

rule" by TMB
adopted by
rule” adopted TMB pending on the merits. Teladoc
pending a trial on Teladoc has a probable right to the relief it

seeks because no imminent
because no imminent peril to public health, safety or welfare exists as evidenced
evidenced by
by

Teladoc’s
Teladoc's operations in Texas TMB
and TMB did not follow the requirements of
Texas for nine years, and APA
of APA

2001 .034(a)(l)-(2), (b), and
§§ 2001.034(a)(l)-(2), Harm to Teladoc
and (d). Harm Teladoc is imminent
imminent because TMB issued notice of
because TMB of

emergency rule on
the emergency The "emergency
on January 16, 2015. The “emergency rule" have an immediate
rule” will have and
immediate and

impact on
severe impact on Teladoc's do business in Texas. Teladoc's
Teladoc’s ability to do Teladoc’s physicians cannot conduct
cannot conduct

telephonic consultations if they believe that by doing so without conducting
by doing conducting prior face-to-face
face—to-face

examination they will be
physical examination TMB. Unless
by the TMB.
be subjected to disciplinary action by TMB
Unless TMB is

from taking or threatening to take disciplinary action against Teladoc
immediately stopped from
immediately Teladoc

physicians based on TMB’s "emergency
on TMB's “emergency rule," withdraw from
Teladoc physicians will likely withdraw
rule,” Teladoc from the

Teladoc PA. Ifthe
Teladoc PA. Teladoc physicians withdraw, Teladoc
If the Teladoc and
Teladoc will be unable to serve its clients and

of dollars in revenue. Teladoc
lose millions of Teladoc has no remedy at law
no adequate remedy law because it cannot
it cannot

recoup the loss of
recoup TMB endeavor
and patients, should TMB
of doctors and endeavor to enforce its second
second illegal rule,

as it done before with the rule invalidated by
it has done by the Austin Court of Appeals.
Court of

9
Reguest for permanent
Request permanent injunction
injunction

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

PRAYER
PRAYER

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

emergency rule adopted by
emergency TMB and
by TMB pending a trial on
and to temporarily enjoin its enforcement, pending on

and upon
the merits, and upon trial on permanent injunction enjoining enforcement of the
on the merits, a permanent

emergency rule. Teladoc
emergency of suit and
Teladoc asks for costs of law or in equity, to which
and all other relief, at law which

Teladoc may be
Teladoc may be entitled.

Respectfully submitted,

WALKER L.L.P.
JACKSON WALKER
JACKSON

By: /s/ Matt
Is/ Dow
Matt Dow
Dow
Matt Dow
Matt
State Bar No. 06066500
Bar No. 06066500
Dudley D.
Dudley McCalla
D. McCalla
Bar No.
State Bar 13354000
No. 13354000

1100
100 Congress, Suite 1100
Austin, TX 78701
TX 78701
(512)236-2000
(512) 236-2000
Fax
236-2002 - Fax
(512) 236-2002-

ATTORNEYS FOR
ATTORNEYS FOR PLAINTIFF
PLAINTIFF

10
 CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
This is to certify that on of January, 2015, a true and
on this 20th day of of the
copy of
and correct copy
was served via email and
document was
foregoing document on the parties listed below:
and fax on

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

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

11
l20l7815v.l
12017815v.l
 1/20/201512:07:05
1/20/2015 PM
12:07:05 PM
Velva L. Price
Velva
Clerk
District Clerk
County
Travis County
Travis
D-1-GN-15-000238
VERIFICATION
VERIFICATION D-1-GN-15-000238
Nam)
AJ ‘go/LIL
e'-'.J Lj o(l)L
STATE OF G6N'N'ECTI'CUT
mm ldOIUL.
STATE OF OONNECIICtn §§
,vew 304/; §§
COUNTY OF
COUNTY OF FAIRFIELD- §§

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

Gorevic, who me duly sworn
by me
who being by sworn on
on his oath deposed and
and said that he is the President and

numbered cause; that
Chief Executive Officer of Teladoc, Inc., Plaintiff in the above entitled and numbered

he and foregoing Verified
above and
he has read the above Verified Original Petition for Declaratory Judgment
Judgment and

V A;
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
knowledge

4.44/«I

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

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

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

»o...,p.§L‘»§,‘é.’¥."'.?«"u..v.«;
No. 4704776
nunlmod In Co!-M‘!

I 5-
------------------··------------- ' ,. ··-·- -·· -·-

l044685 l v.1
1044685Iv.l
Exhibit 1
Exhibit
Lette from Texas
Lette from Texas Board
Board of Examiners against
Medical Examiners
of Medical against Dr.
Dr.
Kram r February
Kram February 14, 2006
14, 2006

Texas Medical
Texas Board
Medical Board
\1.; w:~ v,-....
\.i:t~ i• !'|~u m,:.::.
{t (P\ ~.()l ~ •. .«.~«.‘._:. (‘4.\.,'n|'.•.
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n
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t<<-i~l:t )11\,Ct•H

7-‘emu.-uy I-4, 2065

ROBERT IVAN
ROBERT KRAMER, MD
IVAN KRAMER,I.iD
HOLLAND UII 99
3702 HOLLAND
3702
DALLAS, TX 75219
DALLAS‘ TX 75219

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mic! lo numnm
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KRAMER:
Doclor KRAMER:
Dear Doctor

The ~oxu5
The mdzcax Bo.od
Texas Modicnl Bcad(TM5)h:.sm>Ii.1(r:a
tTMS) hns tn1tiatca n Kenna’ invor)!t!)t!t!on
s tormn! in\'a1;Hg.':lIun cl nndlcr yoJt
you nrHJ/Ot
of you vnatficnl
your mdcfJcnl
pmcflco. The oonnrnl
pmcncu. Tho general statutory ullngahan \s‘
sleuulcry allognlion •s:

1~1.052{u){6) AN ADVERTISING
USES AN
l6J.D52(n)(G) USES THAT IS FALSE.
STATEMENT THAT
ADVERTISING STATEMENT FALSE. MISLEADING OR DECEPTIVE
MISLEAUING OR DECEPTI‘/E
‘

1&1.051(u)(3) cov.u.urs A
16-\.05I[u)(3) COMMITS A RULE vzomaou
RULE VIOLATION
nnrl mnm ssaccrlrcany
nnri mora occihcally aclmnr. la:
rc-!nlcfi to:

The TalcDoc.
TtuJ Tz:|L-Do: Wobsita au rolntos
com) ns
(www.tclade<:.com)
Vh’cbs1|L=(w‘.wI.xc!:IdDc Inicn‘ misloudt~19
1:.-talus to lolac. ndvarlzsmg. toHuro
nuisleadvng ndvfJttis1ng, Ia osmbhsn
lauum to O$tnbtish parlour
pa!iont·
pl1y$'cinn IOia!lonship as
pI\y:‘ch)nIulm1on5h1D pm Boord
os per Board rulo 190.6(
19(l.fl(I](L). and mu
1)(L). nr~cJ lho comoralc pmcuza of
co1por;;tc pmctlca at momcine.
mod>cino.

commmo lhO
Mensa CO<'n;>IOIO
PIOa$0 mu onclosod
onclrmul Mcd~enl Prncticc Questionnaire
r.1cducnIPunr.mc O~ostionnctilo (MPO) mlum itII on
and lohnn
(MPO) oM on Of
as lxulom
boloro
nm prcvmusly ma citeumtttmcas
cucumomnces,
ma
(N106. If
3Mi00. have not
you hnvo
I! you pro-Adan 2:
prC'i>ousty provided uolacmd narmt!ve
n dotaltad explaining tho
nnrrnhvc explaining
muunr. you
Ilus mollol,
suzroumixng this
su:round
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 from Dr.
Letter from
Letter Kramer to
Dr. Kramer to the Texas Board
the Texas Board of Medical
Medical
Examiners in response
Examiners response to May 29,
allegations May
to allegations 2006
29, 2006

Muylv.flMm
VIA Uvur. gill! Dclimry & llnzsnnilc

~Is. 1vl.m
Nix‘. RohirNJO, J.D.
.'\1.II‘lRUl7lllH'()n,}.D
Tcxm State
Tc.xas Sulc Bo:1rd
Board ,;fof Medkai Exarn;rt"""
;’\«Ic.mxm\<~,rs

|’.(). Mex
P.O. Hox 2018, Dmp lviC-262
Mull Drnp
20 I B. 1\lad M('-262
Austin.
/\usl|IL TXTX 7X76:0:·
7&7(AI\‘—'lU!S
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Rc. l'il<: I82 {Ruben
ll 182
I'lIl: il Knnucr)
(Robert Ivan Kr:rru~n

Dear
D~ar ‘Via. ROluII\‘0n:
1\h. Robinson:

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

h.:\ b~en
Ilml has
that ini ~ ||C|.| ullcglng violations
been initiated \CCIiuM lo'l.li)Z(uJ(liJ.
nf sections
\'ix>I;uinus<:( nnd
I6-I135 IIu)(.”4), nnd
lfixI.IIS2(n)(6I, 16-1.051(a)(3).
16-1
I0-l 052ruJ( J 7) of
D5'llu)(l7) 'l'cxns Occuputions
of' the Texas OccupuIIon.~: (.‘nLlc::|1dBn.1nlRulc
Cotk und Board Rule 190.8( I )ti.J. Ilhht·rehy
l90.8(|)L|.). -clay
deny the
deny Ihc allcgatmns.
Llllcgnulmns. burhul um
am hopeful
IIupL-fill that my response
Iluu my rcepnlxsc will mid yuur c·orwcnu
res-; your
;\ilc
Services C'CMS'').
Mediuurl Scrvic toID physicians
physician,:
mnpluycll by
employed hy a physic·iuns·
physicians’ "·""''iatinn
il nunuul TdaDt>c·,
nciauiun oamcdav I’ A. ("The
‘x:l:|l)m-. P.t\.
’
PA"). !Vly
‘Iv: PA''). My role nn th~
rule nn lhr:

lmurd or
llnard ltvircunrs 0
cl‘ Dirccwrs ol' CMS
Cl\1S i,.1o ~..n llulson
serve a•;
In ~;cr\*c 1 liui~on bcl-.\-ccn
. between CMS C ~~ ur1d The PA
um! The in order In
f'A ·,n
. t<1
vmulc Ih.u
ensure 'l’cluDuc
Ihal Tela ml-mbcrs receive
Doc membcn; [cue old stand.rrd"
•·g.olcl n<-cpl for
Ill be pan or HH! Tela Doc r.:oncc,pl |'nr J'inrmci:tl
I'innuci.1l rcn-;ons.
urlwn.-.. t\,;Asl1 liuv''·
Inuvc. done
done
Ilmmglluul my nearly 50 years
thmutrltoutmy yean; in the mcdkal prrvfcsslon. I Imvc
medical rrofcss10n. have chosen
chPscn to znlvnmm: au
In utlvnGrlc.
I

pnrnculur nwdci
p:uticular uf paticnl
m<:clL~l of cine bcc;msc
[lmicnl care believe that
l\cc:m.<"rvice is
M Ilull ~
of' on-call pullclll
tlwt othcrwr!>C
in dcsi~ned
cam w;t.,
patient care
ulllI:r\Vl.‘iC1|r¢
rumlm-. patient
fur rntnine
nlcsignccl for
lhc
\HI.\ the
arc nut
not wntlcly
widdy
whcru
culls whNc
pzllicm calls
pulucxn is
the patirnt
1h;: is cill1€I'a\vu)' frnm !he
~!fh,~r away frorn pmnury care
Illc primury cure plty:-.icinn ur is
phy.~|cinn or unable tn
is un;thle m accC'-'!o\ the
lllc zIL‘I.‘L's‘.s'

l'ugt•
l'u);o at 2
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prnn;,ryy c·.~re
tuxrc ph_mct:m
phj"C"'" bu!hul xllll I‘t:qutrcS lllllncdi.lll!
,flll requm:s il\C'tlic:al ;!I
IH\ll‘::.'(|l.llI:lH\.'Lll'h
allcgctl "failure ~
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pltystx.i:t/: relationship"~
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per Gourd llJ0.8( I )(LJ
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um: ISus pm
~
deli\ cry ul pttticnt
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\'l«l telephone medical ctxttsttlts.
consults. Tckphnnic
1clx:pl1rttttL' care pa11 ofat’
tmtlttttmul tmdtc
tradnional Jn~tllvinc.1c. TheThe Amcricau
Atttcrmut Colkgc.("allege 11fuf Pbysic~;ms
P11)» tns has writ len c'ilwuions. Only Ill" ttmc, the donor
this~ tintc, '

tlnctur is pruvitlcd
pr,lvidcd with much mud: more
nmtt: tnl'urtn:tlttttt
mfornmlion by hy w\tich
ulticlt
ll) wnhc
to an nppmpnzttc
mr~ke un nppnJpri4ih.~ diagnosis.
tllttgnn

Murt:n\'t:r. Tcl:tDtvc model
Morcov~:r. Tcla])()c's tuotlcl dm•s um usc
cltws not
.‘
~
inlcrncl or
Inst: in1ancr on tclcpltom:
tclcpflt)ne qul.'stinnnaircs
qttcxttinunttircs in
otdct to
order tt: cv;duatc pnltcnt condition,;.
t:v;tI|ldl¢ p;tliclll In other
cottrlitlon.» ln ulllcr words,
wttrtls. PA P/\ d<1tlors
tlnclurs arc practicing
are not prucricing
inrctm-.t
intentct medicine.
trtctliulttu. Tltt• Ullly rule that Ime
'l'ht- only n>lc internet plztys
he itttcrnct plays is to In help CMS memhcrs
ltclp CMS tttcrnhcrs enroll in
ll|L' scrvtcc
tlte and provide
scrvJcc and pmvitlc mcdicallll>torics
nmdlct-l hmtnrics forlur the L')\L‘lU.\IVl.‘ H50
thu t:xdu,ivc usc and viewing of PA
01' PA

doctor~.
d(!L‘l0r\‘.

now like ro mes concerning
cunccrning the wclmilc at
‘

I wnuld
wnttltl now :ldlJl'c.\‘:a any
ll: address ttny i.ssucs lhc Tcl;tOoc
'l'ul.tDo<' website
~
l ~ ztl

Ilmn My
~
_\~\VI'£,1Y.!!!l.!IHndard lI4>\\'u\'t:l. in my my ml; rok 4N ;t~ a member nfthc
mt:nt|)cr of
;l tlw CMS tmtttd. I will be lltlppyltuppy 10
l [0
help itnp|t:nu:nl
mvkw my
implement any
ll‘.\/1L‘\\’ my <1V<'r
twcr four
any clwngt:;
("our rlt:cadcs
tlntcttdcs as
tha!lhc
L'|tung,.. tlutl~ the Texas
s a liccnsctl
Mt all Bnttrd
Tcxtls Medical
licensed phy>idan
Ll

~ ml for
plty
flclnrd feels
ttn in Tc.
tn Tc.xas,
lccls arc
~m. wnry lf"
turn nerc>sary

y(lu will set'
,yutl
lfymt
ynu
but Jlhtn-c
see. Ilhnl hai'C
ttnw.tv:rm;,-ly upheld
unwaveringly Ltphcld lht, lhc htgltcst
highest re r<~ganJ Iur the '1‘cx.n 1"1edkal
tltc Tcx.
I)t)ttr(l'.~judgnlx:nI

~
I appreciate your considerution
l[\l‘£ClillC ymtr (:|)ll.\‘lU(.‘l’llllt\n and Impe that
and hope thtu 110nu i'unher
l'u|1ht:r action wtll be
ttcttun will
cmmtct me
ncc
bl: necessary

by your corncc.
~
hy Sltottld you have any furrhcr
flee. Should furlhtrr qu,"tinn~.
t‘]Il<'s|inlI-4, plans-c
plcu'c c.nntuc1 973~X(I5«
me. at 97?.-HM·
16 J ~ or
I6]-I ggmgm
drhohkrh<:n Kram~r. MD
M.D.

Pztuu
Pa~t..' 21 of
or 2

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 frgm Texas
Letter from
Letter Board of
Texas Board of Medical Examiners dismissing
Medical Examiners dismissing
case against
case against Dr. Kramer June
Dr. Kramer June 8,2006
8,2006

TEXAS tviEDICAL BOARD
mum. mun 3»u..n "• I .m
\1'\HI'~I \{)j))lj~.\o I~· Jj(~\.'•il\· \),'d·l'•!)\•
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I

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Jlmr? U, 2UL‘5
Jcr.n U, 2001)

ROBERT !V.‘~N
ROBERT KRAMEH. MD
iV,\N Kf1AMEH. MD
3702 IHOLLAIJD
3702 iOl LAI>JD
9
NIf 9
DALLAS T:<
DALLAS TX 75219
75219

nu; Fvo non-ins:

Dom
Doar Doctor KHAMER.
Doclor KRAMtm.

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um prnvidc Ali!» patit.·m cum
puiicui In cnimiiiimz.
\:ilfC to COil'llllH:r:-;.. .

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 Texas Medical
Texas Board
Medical Board
MAILING ADDRESS:
MAILING Po. BOX
ADDRESS: P.O. Box 2018 •- AUSTIN TX 78768-2018
AUSTIN TX 78763-20I8
PHONE: (512)
PHONE: (512)305-7010
305-7010

June 16,2011

LONE STAR
VIA LONE
VIA OVERNIGHT DELIVERY
STAR OVERNIGHT DELIVERY
Mr. Paul Squire, Esq.
Mr.
General Counsel
Teledoc
Teledoc
1100,Spring 600
00 .Spring Valley, Ste 600
Texas 75244
Dallas, Texas 75244

Dear Mr. Squire:
Dear

Several recent representations by Teledoc regarding its internet program
by Teledoc program have come to the
have come
attention of the Texas Board ("Board").
Texas Medical Board (“Board”). These representations cause concern on the
of the Board
part of Board for its licensed Texas who choose to participate in the
Texas physicians. Physicians who
program you
internet program you advertise should be able to expect that your company has taken all steps
company
necessary to ensure that the service or product offered by
by you Texas meets all Texas legal
you in Texas
standards and requirements. Further, physicians should be able to have assurances fromfrom your
company that they will not bejeopardizing
company be jeopardizing their respective licenses should they choose to
participate. The Board does not believe that physicians in Texas
The Board Texas can rely on
on your representations
as to compliance with Texas Board rules should they opt to participate in your program.
Texas Board

As you may
As may recall, the Board, after extensive public input and numerous
numerous stakeholder meetings,
of which
several of Teledoc participated in, adopted
which Teledoc adopted new As you
new telemedicine rules last year. As you will
also recall, of
of all the stakeholders, only Teledoc and Optimum opposed
and Optimum opposed the final
final rules as adopted,
were not
“face-to—face” examinations were
maintaining throughout the rulemaking process that "face-to-face"
Board Rule 190.8(1)(1)
necessary to establish a physician/patient relationship. Board 190.8(1)(L) provides:

of any
Prescription of any dangerous drug or controlled substance without first establishing a proper
professional relationship with the patient.

(i)
(i) A proper relationship, at a minimum
A minimum requires:
(I)
(I) Establishing that the who the
person requesting the medication is in fact who
person claims to be;
(H)
(II) Establishing a diagnosis through the use of acceptable medical practices
such a patient history, mental status examination, physician examination,
and laboratory testing. An
and An online or telephone evaluation by
by questionnaire
is inadequate;

The Board both initially and
The Board and throughout the process specifically
specifically rejected the position that a
“face— to-
"face- was not required to establish a physician/patient relationship and
face” examination was
to— face" and
Board rules to allow for situations in which
crafted the Board “face-to-face”
which that required "face-to-face" examination
Mr. Paul Squire, Esq.
Mr.
2011
June 16, 2011
June
Page No.2
Page No. 2

could be accomplished through
be accomplished through the use of the internet. Further refinements
use of were provided for
refinements were
was established. However,
after that initial physician patient relationship was However, the fundamental
language of Board Rule 190.8(1)(L)
Board Rule was never changed.
l90.8(1)(L) was

Teledoc’s advertising material has multiple statements indicating that its process can
Teledoc's can be
be
conducted over the telephone without any
conducted any prior establishment ofof a physician/patient relationship
Such statements include:
“face-to-face” examination. Such
via a "face-to-face"

•0 “Teledoe ....
"Teledoc ....provides Aetna’s Texas
provides Aetna's members access to Texas
Texas insured members Texas licensed
physicians who treat minor
physicians who minor non-emergent
non-emergent medical remote telephone
medical conditions via remote telephone
when the member's
consultations when
consultations member’s primary
primary care physician is not
not available."
available.”

•0 "Specialize and diagnosing
with patients and
“Specialize in talking with diagnosing problems
problems over phone.”
over the phone."

•0 “In compliance
"In Texas Medical
with the Texas
compliance with Board’s rules, do
Medical Board's do not with
not consult with
algorithm or
individuals via email, algorithm nor are consultations based
or online chat, nor on
based solely on
an online or
an telephone consult questionnaire."
or telephone The Board
questionnaire.” The Board notes that the only thing the
be looking at is the patient's
physician will be medical records maintained by
patient’s medical There
by Aetna. There
will be no "face-to-face"
be no “face-to—face" examination
examination by Teledoe physician.
by the Teledoc

•I “You should
"You should be aware that Teledoc
be aware was actively involved
Teledoe was comments to such
involved in the comments such
Rules." The Board
Rules.” The Board notes that as Teledoc Board
Teledoe described its practices before the Board
members sitting on
members on the rulemaking was told it was
Teledoe was
rulemaking committee, Teledoc was then violating
Board
Board rules and would continue to be
and if it continued in that vein it would Board
be in violation of Board
rules.

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

Locm. ADDRESS:
LOCAL Aooness: 333
333 GUADALUPE, Town 3, SUITE
GUADALUPE, TOWER some 610 TX 7870
Austin TX
•- AUSTIN 78701I
WEB: www.tsbme.state.tx.us
WEB:
Mr. Paul Squire, Esq.
Mr.
June 16, 2011
2011
Page No.
Page No.33

•- “. ... diagnose
"·. . . non-emergency medical
diagnose routine, non-emergency recommend treatment,
medical problems, recommend
and can
and even call in a prescription to your pharmacy
can even when necessary:"
pharmacy of choice, when necessary:”

These few of
These statements are but a few made by
the statements made
ofthe by licensed
by Teledoc, that if followed by
Texas physicians, will lead to disciplinary action against the participating doctors in the program.
Texas

Such knowing and
Such knowing and deliberate misrepresentation is unconscionable given the active participation
of Teledoc
ofTeledoc in the and rulemaking
discussions and procedures leading up
rulemaking procedures adoption of the
up to the adoption
Board Rule
telemedicine rules in Board Teledoc has been
174 this last year. Teledoc
Rule 174 Board members,
by Board
been told by members,
and myself, as General Counsel, that the structure proposed
the Executive Director and proposed by
by Teledoc is
Board’s rules and
contrary to the Board's and that opinion has not changed
changed due Board Rule
due to the adoption of Board
The adoption of
l74. The
174. of that rule did not in any manner amend,
any manner amend, modify, or delete the requirements
of Board Rule
ofBoard Rule 190.8(1)(1).
l90.8(1)(L).

Board is hereby notifying you
Accordingly, the Board you that any
any representation that you make regarding
you make
Teledoc's program being in conformance
Teledoc’s program Board’s rules will be
with the Board's
conformance with firmly
and firmly
be directly and
By copy
by the Board. By
refuted by Board is sending this correspondence to the Texas
copy hereof, the Board
Medical Association.
Medical

The Board
The Board will take all legal steps as are necessary should it
it see continued advertisements
containing the material referenced above.

Sincerely,

Nancy Leshikar, J.D.
Nancy
Counsel
General Counsel

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

LOCAL ADDRESS:
LOCAL ADDRESS: 333
333 GUADALUPE, TOWER 3, SUITE
GUADALUPE, TOWER AUSTIN TX
610 •~ AUSTIN
SUITE 610 78701I
TX 7870
WEB: www.tsbme.state.tx.us
WEB: www.tsbme.state.tx.us
Exhibit 3
Exhibit
 Cause No. D-1-GN-11~0O2115
Cc:ntso D-1~GN-11-002115

COURT
DISTRICT COURT
Clerlr

Tl‘:t.ADOC, INC.,
Tl:l.ADOC, INC... §am THE DISTRICT
IN Tl--IE
Texas
Pl<:iin!iff,
I-"|.j1,irtIIIf, § Distr:c‘t'Ceut't

roam:

§
vv § 353rd JUDICIAL DISTRICT
JUDICIAL DISTRICT County,
Rnttrigtrez-Mt-:ndoza.

§
TEXAS MEDICAL
TEXAS BOARD cmd
I\/II':'DlC/\t. BOARD and §
The

NANCY LESHIKAn,
N/~NCY LESHIKAR, in her OFFICIAL
OFFICIAL §
roaroarmroarozcovrau
in Travis

GENERAL COUNSEL
CAT’/\Cl'I‘Y as GENERAL
CAPACITY COUNSEL § Filed of
Amalia

OF THE
OF TEXAS MEDICAL
THE TEXAS MEDICAL BOARD.
BONW, §
Delenclanls.
D0fendants. § TRAVIS COUNTY. TEXAS
TRAVIS COUNTY, TEXAS

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

Plaintiff, Teledoc, lnG.
Plaintiff, Teladoc, Inc. Pl.ointiff and Defendants
Plaintiff and appeared by
tlefendants appeared by and
and through their attorneys

of record. Afl~::~r pleadings, the affidmvit
After considering the ploadings, affidavit and attachments in support of
and

the pleadings. and the oroumcmt
tho the opinion that the
counsel, the Court is of thG
argumr-ant of CL'lunscl,

a temporary
applicntlon for a
npplicnllon tornpomry restraining order should be granted for the following

reasons: (i)
roHsons: (i) in accordzince Code §§ 2001.038,
Gov’t. Code
accorcl~ncH with Tex. Gov't. has asserted fla
2001.038. Plaintiff has

V?tlid
valid cmtse or action for declaratory
cause of Texas
declaratory relief with regard to the validity of the Texas

Medical
Modic~~~ Board's interpretation of, and
Board's amendment to, 22
and amendment 22 1'.A.C.
T.A.C. 190.8(1)(L};
190.8(1)(L); (ii)
(ii)

Defendants‘ Interpretation
Dofendc-mls' Interpretation of, nnd amendment to, 22
and amendment TAC
22 TAC 190.8 (1 as set out in the
)(l) as
(1)(L)

General CounRel's
G0ner~l Coun.=.el’s letter
latter of June 1G,
16. ?.001, Texas
rule within the definition of the Texas
2001, is a rulo

Act (APA); (iii)
Aclininistrnlivo Procedure 1\c:t
ATfi
Kgcgju ,1
and
and severe imp.’-Jot on
severo impact ‘l‘eladnc's C:1bility
on Telndoc's The Court further finds
ability to do business in Texas. The

that status quo
lll:1t the status quo will be preserved by
by the entry of this order.

THEREFORE OHDEREO,
is THERt:Fom;
IT IS ORDERED. ADJUDGED
ADJUDGED AND DECREED that Plaintiffs
AND DECREED Plaintiff's

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

ACCOHDINGl.Y, THE
ACCORDINGLY. THE TEXAS l:3OARD AND
MEDICAL BOARD
TEXAS MEDICAL NANCY LESHIKAR,
AND NANCY LESHIKAR. IN

HER Ol-'FlC|Al.
HER OFFICIAL CAPACITY
CAPACITY AS GENERAL COUNSEL
AS G!:NERAL COUNSEL OF THE TEXAS
OF THE TEXAS MEDICAl..
MEDICAL
BOARD, and
BOAHD, and lt1eir be and
employees. and attorneys be
their agents, servants, employees, ARE
and hereby are, ARE

HEREEIY ORDERED to desist and
HF.HE£W ORDERED and
ond refrain from implementing, communicating ond

enforcing the rule stated Texas Meclicnl
st1.1ted in the Texas Medical Board's June 16, 2011,
Board’s letter dated June 2.011,

and until the Texas
unless nnd
unloss Board properly enf.lcts
Texas Medical Board enacts the rule according to the

procodurnl requirem~nts of the APA.
pmcediiral requirements APA.

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

Court a
this Collrl cns~deposlt bond. in the amount
it bond, or czistbdeposit in lieu of bond, ... Sa:>~-
amount of $$____.£‘__0_¢_-__ in

684 of the TeX(3S
Rule 604
conlonnity with Rulo
confonnity Texas liules
Rules of Civil Procedure, payable to Defendant

and
and conditioned that Plaintill abide by
Plc1intiff will obide the decision which may
by U1o made in the
may be made
and that PlnintiH
cause, F.lnd
causa, all sums
pay nil
Plnintitf will pay money and
sums of money may be
and costs that may be adjudged

against the ternporMy
fi£JP.linst itit itif Lhe whole or in part.
teniporriry restraining order shall be dissolved in whole

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

fHed
filed tl1e bond described
the bond clescril>ad nlmvo, issue a writ of temporary restraining order in conformity
ab(lVO, ist:;ue

with the
with the I•1W and the terms
law and Order.
terms of this Orclor.

lT IS FUfHI-IER
IT‘ ORDERED that,
FLlR'l'l-ll:‘.R OHDERED t11at, unless extended by agreement of the parties or
by agreement

changcxt
changed byby further Court,t, this Order become
of this Colli
fut ther order or b~~come effective only at such time as

Tcladoc the clerk of this court a
with tt10
Tc:lmloc files wilh a bond amount of$
bond in the amount of $_.__g30
/
to
Sao~_. .

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

heard before this court on
will be lleard ~·;?e.p_feM~~r-:dttly g3_, 2011. at
2011,

.cl~£~ o'clocl< .p
a::'__0_Qo‘cIocl< . m.
_P_.m.

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

arte:l"
alteer issuance or until
LHHil earlier amended by
G-’-Jl'llCr21l]\€:nC|£‘.d Court. whichever occurs first.
by order of the Court,
72/
Si£med and issued this
Signed rn1r.l JJ.~y
day of July, 2011, at 3ftVo'clock p.. m.
__I_'?__ o|‘July. at 31‘/po‘clock',_D_‘.m.

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

3
5»)

t>l5)'W2v.|
I\I5:W11v.l
Exhibit 4
Exhibit
MclR—a4—2ta13
11AR-04-2t2:113 15:23
15: 23 2El1ST
201ST DISTRICT COURT 512 854
512 2253
354 2268 F‘. B1/3
P.01/03

«g;

Court

Texas

2913 5'.0'H9-
=:?riguez-Matdozmclork

District

County,
U‘:

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

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

Plaintiff,
Plaintiff. §§
§§
v.
v. §§ TRAVIS TEXAS
COUNTY, TEXAS
TRAVIS COUNTY,
§§
MEDICAL BOARD
TEXAS MEDICAL
TEXAS BOARD and
and §§
NANCY LESHIKAR. in
NANCY LESHIKAR, In her §§
OFFICIAL CAPACITY
OFFICIAL CAPACITY ASAS §§
GENERAL COUNSEL
GENERAL COUNSEL OF
or THE
rm»: §§
TEXAS MEDICAL
TEXAS BOARD,
MEDICAL BOARD, §§
Defendants, §§ 353“
353R0 JUDICIAL msrmcr
JUDICIAL DISTRICT

ognzg AND
ORDER AND JUDGMENT
J§gDGME[‘j'I‘

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

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

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

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

of the Attorney General.

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

material
Jnaterial on tile, and having heard the arguments of counsel, the Court finds as follows:
tile.

1. The June 16,
The 20111 l~ttcr
i6, 20\ by the General Counsel of the Texas
letter sent by Medical
Texas Medical

Board to Telndoc, meaning of
"rule" within the meaning
Teladoc, Inc. is not an unpublished "rule" Tcxfls
of the Texas

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

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

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

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

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

GRANTED
GRANTED in accordance with lhe findings above.
the findings

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

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

August
August l10, 2011. has expired and is
0, 2011, is therefore dissolved.

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

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

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

2013.

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

APPROVED AS
APPROVED TO FORM:
AS TO FORM:

~~ %9v-
.. ~-~-·~·. ·--·-·
Matt Dow
JACKSON WALKER
JACKSON L1,?
WALKER LLP
State Bar No. 06066500
06066500
100 100
Congress. Suite 1100
I 00 N. Congress, 1

Austin, Texas 78701
(512)236-2000
(512) 236·2000
236-2002 — Facsimile
(512) 236·2002-
Atrorneys for Plainnfl
Attarneysfor Plaintiff

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

Te~ss___________._______
fid . Ross
Attomcy General
Assistant Attomey
Srate Bar
Sratc 24008890
Bar No. 24008890
or THE
OFFICE OF
OFFICE THE A'I'I‘ORNEY GENERAL OF
A'ITORNEY GENERAL TEXAS
OF TEXAS
Admirdstrativc Law
Administrative Law Division
P.O. Box 12548
7871 1-2548
Austin, Texas 78711-2548
Austin.
Phone: (512)475-4300
Phone: (512) 475-4300
457-4674
Fax: (512) 457·4674
Attorneys for Defendant:
Defendants

TDTRL P.03
TOTAL F’ B3
.
Exhibit 5
Exhibit
 The District Court
Filed in The
Texas
of Travis County, Texu

LM 0 ~ 2013
LIV? MAR 0 It

A~
At /0
/O.'t.f7A>
"4/7/fr M,
M.
Amalia Rodrlguez·Mtndoza,
Rodriguez-Mendoza, Clerk
Clark
Cause D-l—GN~l I-002i 15
No, D-1-GN-1!-002!15
Cause No.

'l‘l€l..-’\DO(.‘. INC.‘
TH.ADOC. INC., § THE DISTRICT
IN THE
IN COURT OF
DISTRICT COURT OF
Plaintirr.
l’l-ttintili‘,
~
s
§
V.
\/I §
§ TRAVIS COUNTY,
TRAVIS TEXAS
COUNTY, TEXAS
TEXAS BOARD and
MEDICAL BOARD
TEXAS MEDICAL §
roar:/.e-o::o:c0urov.~<.9.I‘)B\
I
 _

Sngnxcal
Signed thi
s
~
~~
‘
'

.

rl~l \ 01
xhis‘ ‘L_r|u_\'
'
.,

Fébfu ~
l

]'f\.LCvU?"*
S”
‘~

~~ /x
/L’
\/W5
1/’
V» _
9 ,,.,,.;_... .___‘_
H1/C Honora Ie ,i+\m_\' Clark .\Icz1clm1n
Judge
Judgl' Presiding
Pr«:sidin;_1

N l(:‘)WXv I
Exhibit 6
Exhibit
 TEXAS COURT OF
TEXAS COURT OF APPEALS, THIRD DISTRICT,
APPEALS, THIRD AT AUSTIN
DISTRICT, AT AUSTIN

JUDGMENT RENDERED
JUDGMENT DECEMBER 31, 2014
RENDERED DECEMBER 2014

NO. 03-13-00211-CV
NO. 03-13-00211-CV

Teladoc, Inc., Appellant

v.

Texas Medical
Texas Medical Board and Nancy
Board and Nancy Leshikar,
General Counsel
Official Capacity as General
in her Official Texas Medical
Counsel of the Texas Medical Board, Appellees

FROM 353RD
APPEAL FROM
APPEAL COURT OF
DISTRICT COURT
353RD DISTRICT OF TRAVIS COUNTY
TRAVIS COUNTY
BEFORE CHIEF
BEFORE CHIEF JUSTICE
JUSTICE JONES, PEMBERTON AND
JUSTICES PEMBERTON
JONES, JUSTICES AND FIELD
FIELD
AND RENDERED
REVERSED AND
REVERSED RENDERED -- OPINION
-- BY JUSTICE
OPINION BY PEMBERTON
JUSTICE PEMBERTON

from the judgment
This is an appeal from
This by the district court on
judgment signed by March 4, 2013. Having
on March Having

and the parties’
reviewed the record and
reviewed was reversible error in
parties' arguments, the Court holds that there was

court's judgment.
the district court’s Court reverses the district court's
judgment. Therefore, the Court judgment and
court’s judgment and

renders summary
ummary judgment Board’s pronouncements
Texas Medical Board's
judgment declaring that Texas pronouncements regarding

Rule 19 .8(1
Rule June 2011
)(L)(i)(JI) contained in its June
.8(l)(L)(i)(lI) “rule” under the Administrative
2011 letter are a "rule"

Procedu Act and, therefore, invalid under
Procedu e Act under section 2001.035 The appellees shall
of that Act. The
2001.035 of

pay all c osts
pay and the court below.
sts relating to this appeal, both in this Court and
Exhibit 7
Exhibit
 TEXAS MEDICAL
TEXAS BOARD RULES
MEDICAL BOARD RULES
9
Texas Administrative Code, Title 22, Part 9
Changes -- Emergency Rule
Proposed Changes
Chapter 190 Proposed to Board
Disciplinary Guidelines
Page11 of 2
Page 2

190.8 Violation When substantiated by
Violation Guidelines. When by credible evidence, the following acts,
practices,and conduct
and conduct are considered to be The following shall not be
of the Act. The
be violations of be
an exhaustive or exclusive listing.
considered an

and Welfare. Failure to practice in an
Health and
(1) Practice Inconsistent with Public Health an acceptable
manner consistent with
professional manner meaning of
and welfare within the meaning
with public health and of the
Act
Act includes, but is not limited to:

(A) - (K) no
(A)- change
no change

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

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

(I)
(I) establishing that the person requesting the medication is in fact
who the person claims to be;
who

ofacceptable
(ll) establishing a diagnosis through the use of
(II) medical
acceptable medical
practices[ which includes documenting
such as], which
practices[-suehras-}, documenting and
and performing:

(-a-) patient history[;}~
(_-_a_—) history[,—};

(Q)
(-b-) mental status examination[;}~
examination[,—}_',

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

1-d-1
(-d-) appropriate diagnostic and laboratory testing.
and

(111) An online guestionnaire
ill.D...An and answers
guestions and
questionnaire or questions exchanged
answers exchanged
evaluation of
through email, electronic text, or chat or telephonic evaluation_Qf
 or consultation with a patient are inadequate to establish a defined
defined
physicianqgatient relationship by questionnaire is inadequate];
physician-patient relationship[

([H-I-}I_\{) discussing with the patient the diagnosis and
([tlijiY.) and the evidence
for it,
it, the risks and benefits of various treatment options; and
benefits of

([AqV) of the licensee or coverage of
([-I¥}y) ensuring the availability ofthe of the
patient for appropriate follow-up care.

Remainder
Remainder of unchanged
of rule unchanged
Exhibit 8
Exhibit
 TEXAS MEDICAL BOARD

TO:
TO: Telemedicine
Telemedicine Stakeholders
Interested Parties

FROM:
FROM: Scott Freshour, General Counsel
Counsel

DATE:
DATE: 16, 2015
January 16,2015

SUBJECT:
SUBJECT: Texas Medical
Texas Board’s Notification
Medical Board's Emergency Rule
Notification of an Emergency Rule

Dear Telemedicine Stakeholders and Interested Parties:
Dear

Today the Texas
Today Board (Board) adopted an amendment
Texas Medical Board amendment on emergency basis to Rule
on an emergency Rule
)(L), relating to Violation Guidelines. The
l90.8(l)(L),
190.8(1 The purpose
purpose of amendment is to
emergency amendment
of the emergency
by clarifying that a face-to-face visit or in-person evaluation is
protect the public health and welfare by
required before a practitioner can issue a prescription for drugs. Attached is a copy of Rule
copy of
190.8(1 )(L),
l90.8(l)(L), as amended.
amended. This emergency
emergency rule is effective immediately. The
The same
same version of the
rule will proceed through the regular rulemaking process.

Please know
know that in adopting this emergency
emergency rule, the Board was cognizant of
Board was from the
of the input from
Telemedicine Stakeholders concerning Rule
Telemedicine of an "established
Rule 174 related to the issue of “established medical site"
site”
and the provision of Board Staff has drafted
of mental health services. In response to this input, Board
potential amendments
amendments to Rule 174, which
which are also included as an attachment for your review.

The two rules, 190.8(l)(L)
The two l90.8(l)(L) and
and 174, will be presented at the February 12 and and 13, 2015 Board
2015 Board
meeting comment according to the regular rulemaking
meeting for consideration for publication and comment rulemaking process.
Board Staff has endeavored to make
Board two rules compatible to ensure patient safety while allowing
make the two
greater access to mental health services via telemedicine.

The Board
The Board looks forward your input on
forward to your on these issues.

C: Mari Robinson, Executive Director

Locatinn Address:
Location Address: Mailing Address
Mailing Address Phone 512.305.7010
Phone
Tower 3, Suite 610
Guadalupe, Tower
333 Guadalupe, MC-251, PO. Box
MC-251, P.O. Box 2018 Fax 512.305.7051
Austin, Texas
Texas 78701 Texas 78768-2018
Austin, Texas www.tmb.state.lx.us
www.trnb.state.tx.us
 Cause No.
Cause No. - - - - - -

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

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

§§
§§
§§
TEXAS MEDICAL BOARD,
TEXAS MEDICAL BOARD, §§
Defendant.
Defendant. §§ TRAVIS TEXAS
COUNTY, TEXAS
TRAVIS COUNTY,
TEMPORARY RESTRAINING
TEMPORARY ORDER
RESTRAINING ORDER
On this day, the Court
On of Plaintiff,
temporary restraining order of
Court heard the application for temporary

and Defendant
lnc. Plaintiff and
Teladoc, Inc. Defendant appeared
appeared by and through
by and through their attorneys of Afier
of record. After

considering and attachments in support of
considering the pleadings, the affidavit and and the
of the pleadings, and

argument of counsel, the Court
argument of of the opinion that the application for a temporary restraining
Court is of

be granted for the following
should be
order should following reasons: (i) accordance with Tex. Gov't.
(i) in accordance Code §§
Gov‘t. Code

2001.038,
2001.03 8, Plaintiff has asserted a valid cause of action for declaratory relief with
cause of with regard to the

invalidity of the Texas
ofthe Board’s emergency
Medical Board's
Texas Medical amendment to, 22
emergency amendment 22 T.A.C.
T.A.C. 190.8(1)(L)
l90.8(1)(L) as set

General Counsel’s
out in the General memo of
Counsel's memo oflanuary
January 16, 2015; (ii) shown a probable right
(ii) Plaintiff has shown

to aajudgment because no
judgment because imminent peril to public health, safety or welfare exists and
no imminent and Defendant
Defendant

of Texas Administrative Procedure Act
did not follow the requirements ofTexas (APA) §2001.034(a)(l)-
Act (APA) § 200l.034(a)(1)—

(2), (b), and and so therefore the rule is invalid; and
and (d) and and (iii) and
immediate and
(iii) Plaintiff will suffer immediate

harm because
irreparable harm because the proposed
proposed enforcement
enforcement of emergency rule will have
of the emergency have an
an

immediate and severe impact
immediate and Teladoc’s ability to do
on Teladoc's
impact on The Court further
do business in Texas. The

finds that the status quo
finds quo will be preserved by of this order.
by the entry of

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

Temporary Restraining Order
Application for Temporary Order be GRANTED;
and is hereby GRANTED;
be and
 THE TEXAS
ACCORDINGLY, THE
ACCORDINGLY, MEDICAL BOARD,
TEXAS MEDICAL BOARD, and
and its agents, servants,

and hereby are, ARE
employees, and attorneys be and ORDERED to desist and
HEREBY ORDERED
ARE HEREBY and refrain

communicating and
from implementing, communicating
from Texas Medical
and enforcing the rule stated in the Texas Board’s
Medical Board's

2015 until further
letter dated January 16, 2015 ofthis
firrther order of this Court.

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

amount of$
of bond, in the amount
Court a bond, or case deposit in lieu of of $_ _ _ _ in conformity with

Rule 684
Rule Texas Rules of
684 of the Texas and conditioned that
Defendant and
of Civil Procedure, payable to Defendant

by the decision which
Plaintiff will abide by may be
which may made in the cause, and
be made and that Plaintiff will pay
pay

all sums money and
sums of money may be
and costs that may be adjudged against it
it if the temporary restraining order

whole or in part.
shall be dissolved in whole

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

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

the terms of
of this Order.

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

changed by
changed of this Court, this Order
by further order of become effective only at such
Order become such time Teladoc
time as Teladoc

amount of$
bond in the amount
files with the clerk ofthis court a bond
files of$_ _ _ __

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

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

.m.
.11’).

IT IS FURTHER ORDERED that this order expires no
FURTHER ORDERED no later than fourteen days after

amended by
issuance or until earlier amended of the Court, whichever
by order of whichever occurs first.

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

2
 JUDGE PRESIDING
JUDGE PRESIDING

l20l8l4Iv‘l
12018141 v.l
3
Exhibit 2
Exhibit
 Filed In The EJi.eI‘rict Court
of Tr:»sVE!~: CCI‘LXl8;',,
9
Tc:x::.e
°"%..I.:—LII.!
____3IS5
__
at_
‘

Cause No.
Cause D«l-GN—l5-000238
No. D-1-GN-15-000238 Velva L. Price, 9.3:-mi elm
TELADOC, INC.,
TELADOC, §§ IN THE
IN THE DISTRICT COURT
DISTRICT COURT
Plaintiff, §§
v.
v. §§ 53rd JUDICIAL DISTRICT
JUDICIAL DISTRICT
§§
TEXAS MEDICAL
TEXAS MEDICAL BOARD,
BOARD, §§
Defendant. §§ TRAVIS TEXAS
COUNTY, TEXAS
TRAVIS COUNTY,
TEMPORARY RESTRAINING
TEMPORARY ORDER
RESTRAINING ORDER
On this day, the Court
On of Plaintiff,
heard the application for temporary restraining order of
Court heard

Teladoc, Inc. Plaintiff and
Teladoc, Defendant appeared
and Defendant by and
appeared by of record. After
and through their attorneys of

considering and attachments
considering the pleadings, the affidavit and and the
attaclunents in support of the pleadings, and

argument of
argument of counsel, the Court of the opinion
Court is of temporary restraining
opinion that the application for a temporary

order should be (i) in accordance
be granted for the following reasons: (i) with Tex. Gov't.
accordance with Code §§
Gov’t. Code

2001.038, Plaintiff has asserted a valid cause of action for declaratory relief with
2001.038, with regard to the

of the
invalidity of Texas Medical
Texas Board’s emergency
Medical Board's amendment to, 22
emergency amendment 22 T.A.C.
T.A.C. 190.8(1)(L)
190.8(l)(L) as set

memo of
Counsel’s memo
out in the General Counsel's shown a probable
of January 16, 2015; (ii) Plaintiff has shown probable right

to a judgment
judgment because no imminent
because no and Defendant
imminent peril to public health, safety or welfare exists and Defendant

Texas Administrative Procedure
of Texas
did not follow the requirements of Procedure Act (APA) §§ 2001.034(a)(l)-
Act (APA) 200l.034(a)(l)-

and (d)
(2), (b), and and (iii)
and so therefore the rule is invalid; and
(d) and immediate and
(iii) Plaintiff will suffer immediate and

irreparable harm
harm because the proposed enforcement of
proposed enforcement emergency rule will have
of the emergency have an
an

immediate
immediate and on Teladoc’s
and severe impact on Teladoc's ability to do The Court
do business in Texas. The Court further
fuither

quo will be
finds that the status quo be preserved of this order.
by the entry of
preserved by

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

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

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

and hereby are, ARE
employees, and attorneys be and HEREBY ORDERED
ARE HEREBY ORDERED to desist and
and refrain
from implementing,
from communicating and
implementing, communicating amendments to Rule 190.8(1)(1)
and enforcing the amendments 190.8(l)(L) as stated

in the memorandum from
memorandum from the Texas
Texas Medical Board’s General Counsel
Medical Board's Counsel Scott Freshour dated

2015 until further order of
January 16, 2015 ofthis Court.
this Comi.

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

amount of$
of bond, in the amount
Court a bond, or cash deposit in lieu of of $ 55D“)
6()1) 0'0
in conformity with

Rule 684 of
Rule 684 Texas Rules of
of the Texas of Civil Procedure, payable to Defendant
Defendant and
and conditioned that

Plaintiff will abide by the decision which
abide by may be
which may made in the cause, and
be made and that Plaintiff will pay
pay

all sums of
sums money and
of money may be
and costs that may be adjudged
adjudged against it if the temporary restraining order

whole or in part.
Shall be dissolved in whole
shall

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

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

the terms of this Order.

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

changed
changed by Order become
by further order of this Court, this Order Teladoc
become effective only at such time as Teladoc
(TD
files with the clerk of this court a bond
files amount of$
bond in the amount of $ 55” tro
.560 .

FURTHER ORDERED
IT IS FURTHER
IT ORDERED that Plaintiffs application for a temporary injunction will
be on
be heard before this court on ~ f~;;.,
tC£.07«u3.
J‘, 2015, at q::09
,,-.l'-emtary- tiV
at C! o’clock
o'clock

Am.
t6._.m.

FURTHER ORDERED
IT IS FURTHER ORDERED that this order expires no
no later than fourteen days after

amended by
issuance or until earlier amended whichever occurs first.
by order of the Court, whichever

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

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

l20l8l4|v.|
1201814lv.l
2
Exhibit 3
Exhibit
 THE TEXAS
THE BOARD
MEDICAL BOARD
TEXAS MEDICAL
ORDER ADOPTING
ORDER ADOPTING
EMERGENCY RULE
EMERGENCY RULE
22 Texas
22 Code
Texas Administrative Code
l90.8(l )(L)(i)(Il)
Chapter 190.8(1 )(L)(i)(1l)
Violation Guidelines

The Texas
The Texas Medical Board amendment on
Board (Board) adopts an amendment on an emergency
emergency basis to Chapter 190,
relating to Disciplinary Guidelines, I190.8,
90.8, Violation Guidelines.

The Board
The amendment on
Board adopts an amendment on an emergency basis to Chapter 190, relating to Disciplinary
an emergency
Rulel90.8,
Guidelines, Rule I 90.8, Violation Guidelines. TheThe emergency amendment to Rule190.8 adds
emergency amendment
"defined physician-patient relationship" and the
(])(L) in order to clarify a "defined
language to paragraph (l)(L)
same before prescribing drugs. The
requirements for establishing same amendment clearly defines
The amendment defines the
minimum elements
minimum defined physician-patient relationship. The
elements that are required to establish a defined The
elements include a physical examination that must be performed either by by a face-to-face
face—to—face visit or
an in-person defined under
in—person evaluation, as those terms are defined under existing board rules.

Rule 190.8(1)(1)
Rule was originally challenged by
l90.8(l)(L) was by Teladoc in State District Court in Travis County,
Teladoc claimed that a June 2011
Texas. Teladoc Nancy Leshikar (former General Counsel of
2011 letter, from Nancy of
Board) to Teladoc, stating that Teladoc's·
the Board) Teladoc's'business model of
business model of providing medical services,
medications/drags without establishing a physician-patient relationship
including prescribing medications/drugs
through aa face-to-face visit, waswas in violation of of Rule
Rule 190.8(1)(1),
l90.8(l)(l..), constituted improper
rulemaking The State District found in favor of the Board
was invalid. The
rulemaking and was Board and
and determined that
June 2011
the June was a restatement of
2011 letter was of long-standing law and
long—standing law and policy ofof the Board. Teladoc
appealed Texas Court of Appeals, Third District, under Cause
Court ruling to the Texas
appealed the District Court Cause No.
03-13-00211-CV, Teladoc,
03-13-00211-CV, Ina, Appellantrvs.
Taladoc, Inc., Board and
Medical Board
Appellant vs. Texas Medical and Nancy
Nancy Leshikar, in her
General Counsel
Oflicial Capacity as General
Qfficial Counsel of Medical Board, Appellees. Again, Teladoc
of the Texas Medical
claimed that a June
claimed June 2011 from Nancy
2011 letter, from Nancy Leshikar (former General Counsel of the Board) to
making and
improper rule making
Teladoc, constituted improper was invalid, as itit was
and was was not properly promulgated
under Government Code.
Texas Government
under the Texas On December
Code. On December 31, 2014, the Third Court of Appeals ruled
June 2011letter
that the June Board Rule 190.8(1)(L)(i)(Il)
2011 letter interpreting Board 190.8(l)(L)(1)(ll) indeed constituted improper
was invalid.
rulemaking and was
rulemaking

The amendment is adopted on
The amendment on an emergency
emergency basis under §2001.034 of the TexasTexas Government
The Board
Code. The Board has determined that,· and welfare, it
tht; in order to protect the public health and it is vital

defined physician-patient relationship before prescribing drugs. The
to establish a defined The Board
Board further
determined December 31
determined that the December 2015 ruling by
', 2015
31‘, by the Third Court of Appeals created an absence
of and requirements, thereby allowing practitioners the ability to prescribe
such parameters and
of such
drugs, without ever seeing a patient; thus resulting in imminent peril to public health, safety and
welfare. '
The Board finds
The Board finds that prescribing drugs to n examining the
evaluating and examining
a patient without first evnluating
a face-to-face visit or in-person evnl,uation
patient in n
pntient makes itit impossible for a practitioner to
evaluation makes
insure proper and
and accurate diagnosis andand treatment; to insure proper
proper prescribing practices are
medications prescribed are
followed; to insure the drugs prescribed are therapeutic, i.e., the medications
actually needed and/or proper for the condition (which has never been verified
never been verified by
by an in-person
of drugs of
evaluation or face-to-face visit); and/or prevent overuse/abuse of of any kind.

The defined physician-patient relationship further results in a complete
The absence of na required defined complete
lack of and allows a patient with a subjective complaint, not verified,
of patient records and
of review of verified, to
and receive a prescription drug
simply call any practitioner and drug without an
an in-person evaluation or
This significantly
face-to-face visit. This significantly increases the risk of mismanagement of
of misdiagnosis, mismanagement
patients, over-prescribing, drug diversion and
prescribing. drug
over-prescribing, inappropriate prescribing, drug abuse. Even
and drug Even with
drugs, such as antibiotics, there is an immediate of incorrect and
immediate threat of and injudicious antibiotic use,
which can result in bacterial overgrowth
which overgrowth that thereby lead to the "superbugs, MRSA and
“superbugs, such as MRSA
other antibiotic resistant organisms.

Prescribing drugs without a face-to-face visit or in-person evaluation is not the generally
accepted medical practice andand does meet the standard of
does not meet of care. Without
Without requirements for a
examine and evaluate a patient, by
practitioner to examine by a face4o-face
face-to-face visit or in-person evaluation,
compromises and undermines
prior to prescribing drugs, seriously compromises Board‘s statutory mandate
undermines the Board's mandate
and welfare.
to protect the public health and

The amendment to Rule
The amendment Rule 190.8( l)(L) insures patient safety by
l90.8(l)(L) specific parameters
by setting forth specific
and establish a
and requirements for a practitioner to estabUsh a defined physician-patient relationship prior to
prescribing drugs removes the ~tirrent
drugs and, thereby, removes imminent peril to the public health, safety
current imminent
and welfare. The
and amendment to Rule
The amendment Rule 190.8(1 )(L) will protect patient health and safety by
l90.8(1)(L) by
of acceptable medical
use of
requiring the use comply with state law
medical practices that comply law and medical board
rules, while still providing ample access to medical treatment, via traditional medicine or
providing ample
‘

telemedicine. · =

This amendment
This Rule 190.8(1)(1)
amendment to Rule expand the requirements for treating patients, via
l90.li(l)(L) does not expand
medicine or telemedicine, but rather, clarifies
traditional medicine clarifies existing requirements for prescribing
and is consistent with
and board’s existin'g
with the board's existing rules related to acceptable medical pr11-ctices,
practices, the
current requirements for medical record documentation of patient evaluations and examinations,
and existing requirements for the practice oftelemedicine.
and of telemedicine.

Based on the Third
Based on Court of
Third Court Appeal’s ruling, on
of Appeal's on January 16, 2015. at an emergency meeting of
I6, 2015,
Board adopted
Board, the Board
the Board, adopted an amendment to Rule190.8(l)(L)
an amendment Rulel 90.8(l)(L) relating to Violation Guidelines,
to be The Notice
be effective immediately. The of Adoption
Notice of emergency Rule 190.8(1)(L)
and emergency
Adoption and filed
l90.8(l)(L) were filed
with
with the Secretary of on January 16,
of State on 201 S to be published in the Texas Register.
i6, 2015

The amendment is adopted on
The amendment on an emergency
emergency basis under §2001.034 Government
§200l.034 of the Texas Government
Code and
Code and under
under the authority ofTexas Code Annotated, §§153.001,
of Texas Occupations Code which provides
§§I 53.001, which
Board to adopt rules and
authority for the Board and bylaws as necessary to govern its own own proceedings,
perform its duties,
perform practiceof
duties. regulate the practice· and enforce this subtitle.
of medicine in this state, and
.
, I
1
.

t'
The 13ourd
The Board certifies emergency udopt,ion
certifies that the emergency or
adoption of the proposed rules has been reviewed by
legal counsel and found to be uu valid exercise of the agency's legal authority.

ORDERED by the Board that the proposed rules are ADOPTED
It is therefore ORDERED
lt ADOPTED on on an emergency
A copy of the amended
basis, as stated above. A
basis. nmended rules ORDER,
miles is incorporated in this ORDER.

oflanuary
Signed and entered as of January 16, 2015.
2l)|5.

~~~~~~~~sO~~-------~
mmbula, M.D., R.P
1.. President
Michael rambula,
1., President · '

Texas Medical Board