In this Series:
Introduction
Part 1: Practice Issues
Part 2: Licensing Issues
Part 3: e-Prescribing
Part 4: Standard of Care Issues
Part 5: HIPAA Issues
Part 6: Mobile Medical Apps
Part 7: Unlicensed Practice, Fee-Splitting, and other Legal Hazards
Conclusion
This is a tricky thing about telemedicine law; you need to read the statutes carefully and see whether they say something specific about “prescribing,” as opposed to “diagnosis” and “treatment.”
Normally, state laws and/or medical board regulations are tougher on remote prescribing because of the abuses associated with Internet pharmacies, especially during the early days of the Internet.
As a result of those abuses, the federal government passed the Ryan-Haight Online Pharmacy Consumer Protection Act.
Among other things, the Act:
The Act was named after a teenager who acquired prescription narcotics from an online website after filling out a questionnaire; the physician who wrote the prescription never saw the patient.
However, states regulate what physicians must have in place before providing a prescription related to an online physician-patient encounter.
The big question is whether a physician has to see a patient in person before prescribing a medication, or when a physician should see a patient before prescribing medication.
States differ as to their answers. Lawyers sometimes provide differing recommendations than ‘the state answers’ or from ‘other lawyers’.
The most conservative model is to require an in-person physical exam before the physician prescribes any medication (whether or not a controlled substance). In fact, many early telemedicine statutes required this, and many physicians see patients at least once (or more conservatively, at least once a year) before prescribing.
There are states with looser requirements. For example, the Virginia Board of Medicine’s statement on Telemedicine gives physicians a lot of latitude to make judgment calls on the appropriateness of prescriptions via telemedicine. Firstly, Virginia says:
“Prescribing medications, in-person or via telemedicine services, is at the professional discretion of the prescribing practitioner.”
(bold added)
This is a very broad, permissive opening statement. The Virginia Board goes on to say:
“The indication, appropriateness, and safety considerations for each prescription provided via telemedicine services must be evaluated by the practitioner in accordance with applicable law and current standards of practice and consequently carries the same professional accountability as prescriptions delivered during an in-person encounter. Where such measures are upheld, and the appropriate clinical consideration is carried out and documented, the practitioner may exercise their judgment and prescribe medications as part of telemedicine encounters in accordance with applicable state and federal law.”
Note, the Virginia Board emphasizes the practitioner’s judgment. Of course, previously, the statement has clarified that the physician must do more than have the patient fill out an online questionnaire.
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Contrast this with Florida’s telemedicine rules, which not only prohibit prescribing based on an electronic questionnaire, but also require, among other things, a “documented patient evaluation, including history and physical examination to establish the diagnosis for which any legend drug is prescribed.”
Delaware legislation takes a middle ground. Firstly, Delaware law mirrors the prohibition against basing a prescription only on the patient’s response to a questionnaire sent by email or filled out online:
“A physician may not prescribe solely in response to an Internet questionnaire, an Internet consult, or a telephone consult.”
With this language, Delaware, also in addition to other states, warns against basing a prescription only on an Internet or phone consult.
Having given the above prohibition, Delaware law then goes on to say that a physician can prescribe via telemedicine (i.e., outside an in-person encounter) so long as the physician has first “established” the physician-patient relationship.
Delaware law uses some of the Federation concepts, and adds to them. It provides that a physician “establishes” the physician-patient relationship either by seeing the patient in person, or by means of including these seven points:
While many of these are already standard obligations of the physician, Delaware law focuses some of these on telemedicine. For example, if the physician is out-of-state but the patient is in Delaware and the physician is working with a Delaware nurse, then (2) requires the physician to validate the nurse’s credentials.
Like its sister states, North Carolina provides that prescribing online based solely on the use of Internet questionnaires is inappropriate and unprofessional.
However, North Carolina provides that in certain situations, a physician may prescribe for a patient even when the physician has not personally examined the patient.” These situations include:
In addition, the North Carolina Board noted several other instances in which the good faith exam for prescribing can be online:
These rules represent considerable liberalizing of the stricter requirement of an in-person visit to prescribe.
Notwithstanding the somewhat liberalized rules regarding e-prescribing in some states, many states (such as Florida) provide that physicians may not prescribe controlled substances through the use of telemedicine.
The legal side of E-Prescribing is often more laborious for the physician than actual diagnosis and treatment. Because states differ in their definition of doctor/patient relationship—for the purpose of telemedicine encounters—it is paramount to obtain the most current rules for applicable jurisdictions.
Contact the Michael H. Cohen Law Group for a telemedicine legal consult that fits your particular business model.
Reading this article does not create an attorney-client relationship with its author or with the Michael H. Cohen Law Group. This is an informational and educational piece; it does not constitute legal advice. If you’d like legal advice, consult an attorney for advice specific to your situation.
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The Michael H. Cohen Law Group counsels health technology companies and providers on healthcare legal issues and FDA legal and regulatory matters. Legal counsel includes corporate and transactional healthcare matters, healthcare regulatory compliance, and healthcare litigation and dispute resolution. Attorney Michael H. Cohen is an internationally recognized author, speaker on healthcare law and FDA law, and expert in developing legal strategies for healthcare ventures, including integrative medicine, anti-aging and functional medicine, telemedicine and concierge medicine.
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