SB 397 seeks to standardize consent documentation procedures for telemedicine, teledentistry, and telehealth services in Texas. It aims to improve regulatory clarity and patient protection in virtual healthcare settings by requiring uniform consent formats and establishing audio-only documentation standards aligned with the appropriate standard of care. These goals are generally aligned with liberty principles such as individual liberty and personal responsibility, and would typically merit positive consideration under a limited regulatory framework.
However, the bill contains a critical provision in Subsection (e) that fundamentally undermines core liberty principles. This subsection mandates that rules “must require that a health professional conduct an in-person examination of a patient before an irreversible medical procedure is initiated.” The language is both vague and overly broad, granting sweeping discretion to state licensing agencies—most notably the Texas Medical Board (TMB)—to define what constitutes an "irreversible procedure" and who qualifies as a "health professional" authorized to perform the required in-person exam. This effectively empowers regulatory bodies to constrain scope-of-practice flexibility, impose onerous requirements on midlevel practitioners, and undermine longstanding delegation authority to advanced practice registered nurses (APRNs) and physician assistants (PAs).
There is also strong concern that this regulatory latitude could be used by interest groups, such as organized physician networks or specialty lobbies (e.g., dermatologists or groups like TX 400), to restrict competition and consolidate control over high-demand service lines such as aesthetic or med spa procedures. This poses a direct threat to free enterprise and could jeopardize the viability of thousands of small businesses—particularly independent med spas that rely on delegated, protocol-driven care delivery under telemedicine models. If the TMB were to interpret Subsection (e) in a way that excludes delegation or requires physician-only on-site involvement, the resulting rule could functionally eliminate telemedicine in vast areas of elective and wellness care.
Furthermore, the bill runs counter to recent legislative momentum that has explicitly expanded access to care and restricted the ability of agencies to narrow provider scopes or impose burdensome in-person requirements without legislative direction. By contrast, SB 397 would move policy in the opposite direction—granting wide latitude to agencies with a documented history of resisting telemedicine, and doing so in the absence of clear statutory guardrails.
Although the goals of improving patient consent and protecting data are valid, those benefits are outweighed by the risk that this bill could be used to reverse or undermine legislative gains made in access to care, market innovation, and scope-of-practice reform. As drafted, the bill substantially violates liberty principles and poses a material threat to the decentralized, accessible delivery of healthcare services in Texas.
SB 397 should not advance in its current form. It must be significantly amended to:
- Remove or narrowly define the in-person examination requirement in Subsection (e),
- Prevent overreach by specifying limits on agency discretion,
- Protect the ability of APRNs and PAs to participate in delegated care models, and
- Preserve telemedicine access for low-risk, high-volume procedures.
Until these concerns are addressed, Texas Policy Research recommends that lawmakers vote NO on SB 397. Originally, Texas Policy Research recommends that lawmakers vote YES on SB 397. After further review, we have revised that recommendation.
- Individual Liberty: The bill initially supports individual liberty by ensuring patients receive clear, standardized disclosures before consenting to treatment, data collection, and data sharing. This protects patients’ right to informed decision-making. However, the in-person requirement undercuts this principle by restricting how and when individuals can access care, particularly when they have already chosen a telemedicine model. Patients lose the freedom to make healthcare decisions that fit their needs, especially in areas like med spas or wellness services, where procedures are generally safe and already conducted under delegated authority.
- Personal Responsibility: Standardized consent procedures reinforce shared responsibility in medical interactions by clearly documenting patient understanding and agreement. Providers are held accountable to a common regulatory baseline, and patients are better informed about the implications of their choices. This supports a culture of mutual responsibility between healthcare consumers and providers.
- Free Enterprise: The bill introduces serious threats to Texas’s robust healthcare and wellness services market, especially for small businesses like independent med spas, which rely on telehealth-enabled delegation models. By empowering agencies like the Texas Medical Board to define what constitutes an "irreversible procedure" and who may perform in-person evaluations, the bill opens the door for anti-competitive rulemaking. Dominant provider groups—such as dermatologists and specialty lobbying networks—could use this discretion to impose physician-only or on-site requirements, limiting competition and forcing closures across a large share of the industry. This poses a clear and significant barrier to market access, innovation, and entrepreneurial opportunity.
- Private Property Rights: The consent provisions tangentially reinforce control over personal data—a form of intangible property—by requiring that patients affirmatively agree to data collection and sharing. However, the bill does not address broader property rights issues, and it potentially jeopardizes small business owners' ability to operate and invest in their businesses if regulatory bodies use their discretion to restrict or revoke access to markets without due process.
- Limited Government: The most troubling aspect of the bill is its expansion of agency power, granting open-ended discretion to regulatory boards to define irreversible procedures, determine who qualifies to conduct in-person exams, and potentially limit or eliminate delegation authority to APRNs or PAs. This approach reverses years of legislative effort aimed at constraining regulatory overreach and expanding access to care. It hands policymaking power to unelected agencies with documented histories of resisting telehealth and innovation, which is in direct contradiction to the principle of limited government and legislative supremacy.
