In North Dakota’s SB 2094, which was introduced in early January and amended in the Senate Human Services Committee later that month, has been gaining some attention in telehealth circles due to some of its more unique characteristics; largely because it allows a valid relationship between a licensee and a patient to be established over telemedicine. Alone this is not unique, as it is relatively common for states to allow a licensee-patient relationship to be established via live video telemedicine (CCHP has identified at least 28 states with this explicit allowance). However, the legislation specifies that the examination can take place either via video conferencing or “store-and-forward technology for appropriate diagnostic testing and use of peripherals.” It goes on to specify that in certain types of telemedicine utilizing asynchronous store-and-forward technology or electronic monitoring, such as teleradiology or intensive care unit monitoring, it is not necessary to conduct an independent exam of the patient. This allowance for store-and-forward to be used in establishing a valid relationship is rare.
Most other states are either silent on the issue or exclude the modality of store-and-forward from the definition of telemedicine when creating standards around establishing a valid relationship. In the case of North Dakota, it has been reported that the inclusion of store-and-forward as a modality that can be used to establish a valid relationship was fueled in part by complaints from health care providers and telehealth companies who argued that it should be left up to the professional judgment of the healthcare professional to determine what type of technology is appropriate to establish a relationship with a specific patient. Note that North Dakota’s SB 2094 still does include a prohibition against conducting an evaluation or examination on the basis of a static online questionnaire or an audio conversation. Many other states do also have this prohibitive language against an online questionnaire in their law or regulation (CCHP has identified at least sixteen).
SB 2094 also addresses prescribing controlled substances, stating that a licensee may prescribe medications according to the licensee’s professional discretion. Opioids, however, may only be prescribed through telemedicine if prescribed as a FDA approved Medication Assisted Treatment for opioid use disorder or to a patient in a hospital or long-term care facility, as long as the prescription complies with state and federal laws and the prescriber participates in the North Dakota prescription drug monitoring program.
Under federal law (the Ryan Haight Online Pharmacy Consumer Protection Act), a prescription for a controlled substance can only be issued if at least one evaluation of the patient has occurred either in-person or through the “practice of telemedicine”. The Act provides specific scenarios on how the telemedicine interaction between patient and provider must take place that include:
- A patient is being treated and physically located in a hospital or clinic registered to distribute under the Controlled Substance Act
- The exam is conducted when the patient is being treated and in the physical presence of a practitioner registered to distribute under the Controlled Substance Act
- The practitioner is an employee or contractor of the Indian Health Service (IHS) or working for an Indian tribe or tribal organization under contract or compact with IHS
- A special registration has been obtained from the US Attorney General
- In an emergency situation (21 USC 802(54).
Therefore, while North Dakota practitioners may be able to prescribe an opioid according to the limited exceptions outlined in SB 2094, they would still also need to abide by the requirements of federal law as well. The Attorney General is required to promulgate regulations to specify some limited circumstances under which a telemedicine special registration may be issued to prescribe controlled substances in the coming year, so stay tuned for future updates on this issue from CCHP.
SB 2094 passed North Dakota’s Senate unanimously, and is now in the House.