Telehealth and Prescribing
The use of telehealth to prescribe is impacted by laws and regulations on both the federal and state levels. Federal policy impacts the prescribing of controlled substances.
The Ryan Haight Online Pharmacy Consumer Protection Act & Prescribing Controlled Substances
In October 2008, the Ryan Haight Online Pharmacy Consumer Protection Act was signed into law, amending the Controlled Substances Act (CSA) by defining legally permissible activities for physicians prescribing controlled substances over the Internet. The Drug Enforcement Agency (DEA) is the federal agency responsible for enforcement of the Controlled Substance Act (CSA). Among its duties is overseeing the distribution of controlled substances over the Internet. The Ryan Haight Act of 2008 added to the CSA and placed under DEA jurisdiction controlled substances prescribed via telemedicine. Certain exceptions were made allowing the use of telehealth to prescribe controlled substances under what the Act calls, “the practice of telemedicine”. The definition of “the practice of telemedicine” comes under 21 USC 802(54). In that definition, several potential scenarios (some with very specific elements required) in which a prescription can be made are outlined. This includes:
- The patient is being treated by and physically located in a hospital or clinic registered under section 823(4) of the CSA;
- The patient is being treated by and in the physical presence of a practitioner;
- The telehealth practitioner is an employee or contractor of the Indian Health Service
- The telehealth practitioner has obtained from the US Attorney General a special registration;
- The telehealth encounter is being conducted during a medical emergency; or
- The telehealth encounter is being conducted under circumstances that the US Attorney General and the Secretary of Health have, jointly and by regulation, determined.
State laws and regulations also determine if and how telehealth can be used to prescribe. Often the state medical and pharmacy board regulations detail the manner in which telehealth is utilized in making prescriptions. State Medical Board and Pharmacy Board regulations require the establishment of a patient-provider relationship in order for physicians to write a prescription and pharmacists to fill a prescription.
States vary on how they define a patient-provider relationship. Generally it is established when a physician agrees to do any of the following:
- Perform an examination of a patient
- Diagnose a patient’s condition
- Treats a patient’s condition
- Creates a follow-up care plan
Some states require at least one in-person consultation to establish a patient-provider relationship. Recently, states have begun formulating policy on when and if telehealth can be used to establish a patient-provider relationship in relation to prescribing. Most states also explicitly prohibit the prescribing or dispensing of a prescription based solely on an Internet/online questionnaire, consultation, phone call or email.
Check your appropriate state medical/pharmacy board regulations for their policy on online prescribing and what is required to establish a patient-provider relationship. You can also use the National Telehealth Policy Resource Center’s website as a quick reference.