                                                                                                      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|'.•.
                                                                                                              ·''-''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

            H;--
            Ftc·   Fm; ttn 0541197
                   F1!c            lnlensa mfar
                           OG·l097 (pfensa      In mks
                                           mic! lo       numnm
                                                   lhiti numt>nr                    m lulutc
                                                                                    m Imum corrcspontJcmco)
                                                                                             collr.-spanllencv)


                        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<ng               you oro  encuumgau to
                                          are oncowagod        do 50
                                                            re do    cxllhis1umo.FIuMo
                                                                  so of                    knaw thnl
                                                                        this limo. P!oaso know   lhal TMB
            Is HIPPA oxompt.
            I3 HIPPA   oxvrﬁbk.

                          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




                                                                                                                                                         '    A




                                                                                                                                                     A
                                                                                                                                                                   EXHIBIT
                                                                                                                                                                   EXHIBIT

                                                                                                                                                                   t.......

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<llI:.n l-'>.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
                                                                                        ;\<ldn:-<         clalwccrxlx and that




                                                                                                          ~
            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<!'s
                                                                                        -.Img. my
                                                           your t't.1nct.~fll!-\ rt~ganJinr
                                                                 Wchsnc is~ ~uwncLiiII1<l
                                                                                   own~d and opcratctl
                                                                              ("(‘M$ ). CMS ~
                                                                                                       anmm-um-nu wtth !he
                                                                                                 my invo!vemt·nt
                                                                                                      I



                                                                                                      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 <I2Iml.Iul“ cnrecalw from The     The f'A        xlucmn.
                                                                                                                     's doctors.
                                                                                                                F‘/\‘,«



                      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.<c II hchcvc                    good for
                                                                                            is good
                                                                                        (I i~          fnr patkms.


                                             ~
                                                                                 Ihznl 11                   p;.lli::xIh.




            ~~ clubilily and
           afTord.,bility
           .1


           avarlablc
           :1     .
                      ~
                              and re
               ~ uhlc II)inth<'
                             Inc nmrkct.
                                          mc1nIlu:'l‘cl.ll)nc
                              ur!Jactcd rn~
                    \Vl\ulIll1luC
                    What

                                 market. The
                                               -




                                   ready ace'~''
                                                   I



                                             cu;-.1, In
                                                                    umu'cp1nl'nn-cull
                                                to the Tela Due cow:cpt
                                                         mm "ml physid:rns
                                                     lo qualified    plly.
                                                   T<,'luDuc *-.:‘I‘\‘icc.
                                             T111: TdaDoc      ><"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•
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                                                                                                                                                            EXHIBIT
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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<J1Il                   Tulaunc ''
                                                                                                                          tent ion. TdaiJ,K·
                                                                                                                        alllclllitm.            ts n'''
                                                                                                                                                   llul
                      tlcstgvtml tn rL~phH:e
                      dL'-tgn<:tlw  rcphttrc           a prim.uy
                                                       .t [\lill1.ll    CH!\.';.         ~ n and
                                                                               ph;~dl'I<Hl
                                                                        curv ph)».1'..'              doc‘ not
                                                                                              ;nul doe:~      um p!!qwll
                                                                                                                      putpust !o lu d.:,,
                                                                                                                                    tlu !',!i.
                                                                                                                                          5...


                                       Yum       '


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


                                                                                             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
                                                                  ~



                                                                                                                                                                      I.\

                      i<
                      is   tlec
                           t/lc   typt• ul'c:m
                                  lypc of         tl-mars p!OVIU~
                                            thai thKiors
                                           Cntt        llhtlpttwtdc all   lhc lttnc
                                                                      ail the        tn l'ft·~ltJI
                                                                              lllllC til |'l|-     and l'I11SS-Clii'C'HI;,!C
                                                                                                   and                      ~
                                                                                                        I.'f‘l‘I$.‘~-l.‘U\'£‘l-|"C




                                                                                   ~
                                                                                                                                I
                                                                                                                                                         ~

                      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.!<X'.tt®.
                           tc|ztt_lg,;ctun.                  nul itwulvutl
                                                        am not      involved with the d~,ign                 wnt-ding nfthc
                                                                                                        m wnrding
                                                                                              t’Jx:\igl10(                ,,,. the Website.
                                                                                                                                     Wch.~;i(c. !\'ly
                  lncu at                                make sun:         that the pmpr        ml‘r structure exist'
                                                                                                                                             ‘


                  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<IS    t\/‘C'JiI.    Bmwd. 1\'
                                                                                                                     flt,;tr<L     A: a!w;1ys.
                                                                                                                                    l  nlw-Iys. I will            1




                                                                                                                                                                  ~
                  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<!J.IIcr\«:rw.L.mu.
                         t)rt_lrlmltkt    tttut




                                                                                                     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\· \),'</!11\\ ''>d·l'•!)\•
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                                                                                                      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.

             ·1 he· im·c>lil!ali"n      rct'crcnccd ubmc
                              g: on n:v‘crcnccd         ubc1\ ,. lms
                                                                 bus lwcn                  hccausc the
                                                                             dismi%cd hccau>c
                                                                     bvL‘ndia‘nIi:<sL'(l              me unnnl
                                                                                                           llnmd lh:l~nnincd       mm: 11“:13
                                                                                                                   ilvlurminml thc_r~        as        .
              in,unieicnt ,•vi<
             izmutmiuxix
              1!n~ findinH"
                                     knee la
                               v.‘\’i|k'n
                                    th~ ln\'t'~:.ti:gO\tiun,
                                                                                        Mcdicnl.l'r~ctkc
                                                         that n violati11n o( !he Mcdicni
                                                pmvccllmln\‘iul:I1iunnl'llIu
                                             to [in
                                                                                   mu invoh•t
                                                                                                  l'r.u;t'Icu Act. uv:curn‘d. .spect~!call~·
                                                                                                              Act •;ccurrcd:
                                                                                                     cm AuI\L‘rIi\'il!y,«)l\
                                                                                                                                SpcciI'xc:Ii|,»'.l
                                                                                                                                            webs     c
                                                                                                                                                      and on
                                                                                                                                                 • ~'"~~d
                                                                                                                                                        and
                                                                                                          ;ufvcrttiOm~ ,]fl 1tdnDot.: ~ \\ ~,:b:-.!fc .lll!
                                                                                                                             Tu!.1l)nc‘:.
                                                                                                                                                              '!"
             :51:               urnw
                   I‘uu)in-,:~ of                1;;   inn, DrDe Krumrr
                                                                   Kratnl'r isi:-o not nu-ulvodd 1n
                                                                                                 in 1nc                    1



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




                                                                 '    f ''     ' ' Ut..:·1·wn \\ l'Jfll ~.:• t·~•""\;
                                                                                                                 '· '1\ C1 >1\·'t:mint•         cmnx\I.z1n|
                                                                                                                                          thi<• Wll\rJHilll
              t\~
              .<\.\'   nuch. this ruIn[!luIn||Ia::lwwlsllxlniuui.NuI‘u11huruc!i«)n\xiHliulukcncmxtcmingzllizi
                       !'tUCh.    cornpluint hn~ b..-cn \ I tS.InlSf<Ct. l"'tJ lurlnt~                                       .._ '   ....




              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.


              smcomly.
              Sincorcly.
                                                                       ,r
                                                      -


                         ,/,,.,·~·
                                '.                        .




                       ,-"It 1 /:l it 'XtU.\
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                                       .~.6[M ir,(JrJ+' •
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              1,1nri RctiH't~~on. J.D
              uzui Rctimson.           .. l.im\nqaI
                                  .J.D.,  f..IDnaqm
              Compl.-u‘rw:
              Cornpltlifil!~ and   Invcsugnlmns
                             and lnvos:~onllo:-~!'




              u'.=«:x:aa        w




                                                                                                                                                                          EXHIBI
                                                                                                                                                                          EXHIBIT
                                                                                                          ~


TelaDoc«>
Tel      Doc"')
                                                  "
                                                                                                77                                                                   W0
                                                                                                                                                                     12010
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                                                                                                                                                                    T0025
                                                                                                                                                                    T 00::!5
Exhibit 2
Exhibit




~
                              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<llllinistr<'ltivo                                   has shown
                                       (iii) Plaintiff has       a probable right to a
                                                           shown a

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

 slatutnry rule~maI<ing procedures of the APA,
 statutory rLJ!e-m~t!<ing                 /\PA, the rule is invalid; (iv)
                                                                     (iv) in this matter the


 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.~<.<r.:r;:vnur.




 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
                                  ~
                                  ~~
                                  ‘
                                      '



                                          .




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                          xhis‘ ‘L_r|u_\'
                                              '
                                                  .,

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                                                                                  ~~                       /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
