in Re Teladoc, Inc.

• Court: Court of Appeals of Texas
• Decided: January 27, 2015
• Docket: 03-15-00061-CV
• Status: Published

Opinion

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‘!

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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|'.•. ·''-''lo<'•, j 1 .;·•,,-.,;HI n n "(M])yl':\.‘u.|4 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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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

manor is Although this m;!Uor A1lnaugn|ni5 is assigned nssigncd ro nn invostigotor to nn who is mvosrignlnr wllo Is not tho t\ustin no! in tho /\u5l:n ofhco, cmcclna unhzss diroctod olhca, unfuss to do o1hcrwiso~ plaasu for~wnd mhorwiso. p!anso Inm.-mt nu couespanucnco to m.1i!mc\nMC~262 nl Ihr: ubova address. zlbovn nddrcss. la do nH couc$pondonco lo mnil drpp MC·262 nllha

Fr:or mlmmullon mgnrding or mforrnutlon wgrnding tt1e process. ploaso colnpininl process, l|\o cornplninl via-150 visit our wubsmo wsiv our wobs1to nl rA‘NI.ImD.slnla.xx.u3 al w\'IW.tmb.stnto.tx.us sincnlcl-/. Sincerely,

~ MunR0bIn\2.0r\,J,D,,M‘I'1.ry:l 1.1an f1ob•n,on. J.D .. l.lanag<,r ~

~

cnn.prn.m:-. ma Cornplnlnt~; nnd Lnvrzshgnlnnns lnvn5Hgni!Of\O

KELLY PI\T“»()N. A:'»4gnI‘(A In‘/(':7|vg:)Ir17 (5 I21 25~3«73GI

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el ~1Doc«> 4“ W”0 M H “W “H'‘' -~ and Confidential Proprietary and Confidentlal T 11022 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 20! S

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 ;\

~ no (urlhe.r rro union will In: fmllucr auiun be m-.cI:,<.~;:ry nccc"ary by Ivy you m ynur offic~. In’ your uxlice.

mm TduDnc may begin I ;,.hn!l 1 lwcgjn by wclmlc ("the Ti:luDoc wehsiw Sc icc~. Inc. ¢|/I7/:1/Tc|;zDUC Services. ~H.ldre:.;\;ing ynurL‘m)cu:I1\s l!_y u:lr.ln:»'-ting

(“Ihc Wclmw-"I. Wchslte .. l. The d/hla/ Tc.li!Doc Medic«! TIN: Weh>ilc Services C'CMS''). Mediuurl Scrvic

on (‘MS ,toe,; III hy C'yhcr all hy

pmcl c ~~ not pr;l<'tice me Cylicr Medical Mcllicul \‘ ~

mc-drc:inc.. (TMS mcduunc. ClvlS udmuusl

~ admmistcrs -\ a paricnl rlumlxusc and u pulicnl dawhasc nml rdcrs |3.IIi\: [culls rclcrs patient c;dl> 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

My history My hismry as us:n~ plly.sh:ian zlcumnxlrulu my vlvyslnmx will dcm<1nstrutc ~ my l.‘l)|lIlIllllDl.‘|ll commitment to lu pmimrl cave, pmi<•nl Cllrc. Almclscd us "Exhibit 1" cnpy ofufmy cum-nl resume. Thmugh hard lmnl work and 11n '

Attached"' “lixlnbll 1 .. is au .:opy my Cltrrcnt rcsurnc. Thrmrgh work and belie!' in my umncmlous hcliI:I'm huvc dcvclorcd nzlximnl

~ ucmcnclous rule as a my role u phyuiuian. physician, I h;l\'c in (lC\lCl(7|‘IL§ll a I u very ,;oJicl, solid. n•ttional rL‘pul1EllI)I\ in um repuwtion the rncdkal have chosen field. I h:tve nucdicul 11cld. chosen In to work wcnk on I an the TclnDm: lhc Tela r:onccpI luau Doc con.:cpt hceau-;cno II hclicvc in it» it~ a nu of mi;;sion nf reducing rt•dudtlg hcalth um . ern unre c:o;;t,;, hcullh . care ulnpowcringlluc powering Ihe patientpaticnl In to make make ccrtuin Ctlflulll health-related decisions. and incrcnswg ace'!"' l|C3lll]l-ILI‘-\lC(]dC“Vl0lIS.1lllLlll‘lCl't?ll$lllgI|L|. ~ ~ lop-qII:Ilil_y health «a to top-quality ll’) cam. flllul hcnllh care. nut drtf not clmn.-zcInbcp;Ir1urIl|c'I‘eluDoc dton,;c ::<>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.

~ Ihznl 11 p;.lli::xIh.

~~ clubilily and afTord.,bility .1

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l'ugt• l'u);o at 2 I nf2 I

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indicate-d a t:on(t:rn r~g.1nfing rile ttcrtmllt';ttt:.l:1.:tuttcrttrcgatrtlingrltc Your ieucr " a!lcgcd e-1\lnbiL;II p~Hknf "l'.n'hm- tn I,'\llI|)I§>'h allcgctl "failure ~ ism-.. pltystx.i:t/: relationship"~ phy.skiaa rl: :l'mn~:hi{ ~ ts pvt rul~ l‘)(LS( Bmtttl (MIC per Gourd llJ0.8( I )(LJ )(Lt .. The l Thu Tclttllnt: TclaD<>C ttmtlul mndd involves in\-uh-(:2 um: ISus pm ~ deli\ cry ul pttticnt (l(!ll‘.<.'l“,‘ p:Hknt care::.trc \"ia lclcphunt: utatltcttl \'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'

PA tlucttm much Iin1e ~ ~ tnplctc pallcllf \.'nrnpkl~ pullulll hlxhlry m lruul lIl.‘\IUr_\‘ lll front of or them. lhcflh PA ztlett xpcml do~Ior.'l alsn ~pend us w~ much time as j, zts is ncvcsmry to nc\.·t:ssary arrive af lu arrive all an ttn act.:uralC cvaJualion ttntl tlLL'lll'flll! C\‘llllJJ|lll!|I ltl ~1ddrcss and ll) qttt: ~ inns rrom .'|dtlrc.~‘ questions lrmn ptllicnt!'t. pulicn ‘H: This ~

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silunlintts. Only >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.!

fm:us ~ ul Tela Doc ts ll5l.'t[lL1L' to make is ttJ sure tJr;ll proper infrasuucture la ltJ cnuhlt; gold In enable l:

CMS bourd. ~ ~~ cmc. llmwser. \(1ln(l:(l'lI cure. >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

~ Uclhr In defer Texas Medical to the Texas Medical llnurd', sttggcstiryns judgment and suggestion>. 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 drhohkr

Ymtm V<:'l)' Your:. vcly truly.

Rnlxcrr Ktmncr. Rc>h<:n Kram~r. MD M.D.

Pztuu Pa~t..' 21 of or 2

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Proprietary and Cunlidonlial and Confidential T 002-l T 0024 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'•!)\• ~! I

1 \ l 'l .x- ~·' • · ~ •l/ 1i

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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dues n,·u dth:'> pnmdc dirccl um prnvidc Ali!» patit.·m cum puiicui In cnimiiiimz. \:ilfC to COil'llllH:r:-;.. .

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A rccurd A n:t:onJ of this matter uftluis manner will will hc1.:~m1c ua hiaivrical become hbh,rical pun pilrt of our lih:~ nfnur Iilus >1Hd n:m-Jinx \:\t~ltUh\rily um! rcnmin:-i slmulnrily unnfixlmlinl. ~nnlitknlinl.

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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 A

juclgmenl when an agcr"'lcy bricntlse when judgment br:cmtsc agency promulgates prorntllgates a rt rule without complying with the

slatutnry rule~maI

T was McdicnliJomd Toxt-u;; Medical Board failed tailed to comply with the following sections or requirements of the

APA: 2001.023. .0211-, API\: ?.001.023, .024. .029 .O~l9 and and (v) and .033; and and (v) Plaintiff will suffer immediate and

irreparable hmm irrepi:lri1blo hnrm because because the proposed enforcement enforcor11enl of the have an immediate tho Rule will have

jar :>Tfi 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.~<.

NANCY LESHIKAR, in her OFFICIAL NANCY LESHIKAR, OFFICIAL § CAPACITY AS CAPACITY GENERAL COUNSEL AS GENERAL COUNSEL § O17 THE OF TEXAS MEDICAL THE Tr:XAS MEDICAL BOARD, BOARD, § Defendants. § 353” JUDICIAL 353rd JUDICIAL DISTRICT DISTRICT

ORDER SUPERSEDEAS ORDER SUPERSEDEAS

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

Suppoti and the Response Support and Response of of Defendants, finds that the elements of TEX. R. APP. APP. P. 24.2(a)(5)

have been have satisfied. Specitically, been satisfied. finds that 1) Defendant Texas Medical Board is a Specifically, the Court finds

governmental Nancy Leshikar is a defendant because of her official governmental entity and Defendant Nancy

ofTexas Medical Board; 2) on capacity as general counsel ofTexas on~~~ ~013 QOIB the Court signed a the a

Judgment in favor of Defendants in their governmental capacity; 3) Defendants have no Final Judgment

harmed if enforcement of the Final pecuniary interest in this matter; 4) Plaintiff will likely be harmed

Judgment Judgment is not suspended in that Plaintiff will no longer be able to conduct business in Texas

its current business model; and 5) Defendants and the public will suffer under its harm from stiffer no harm

suspension of enforcement of the Final Judgment harm they suffer any rate the harn1 Judgment in this case, or at any

is outweighed outweighed by harm Plaintiff would suffer by harm by suspension. stiffer by

ORDERED, ADJUDGED IT IS ORDERED, DECREED that the Final Judgment of ADJUDGED and DECREED ofiiebruaxx‘ ffl(;;t~C I/via/Lch h j_, 2013 1, 2013 is superseded and suspended during any appeal of such judgment judgment to the Court of

appeals, Because the TMB Appeals and any other further appeals. damages ... “actual damages TMB will suffer no "actual 1 . .

from suspension of the judgment," TEX. from TEX. R. APP. APP. P. 24.2(a)(5), no bond. I’. 24.2(n)(5), bond, deposit or security is

required.

8469J98v.l 8-l(>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