TechHealth Perspectives STRATEGY, ANALYSIS, AND COMMENTARY ON CURRENT AND NEW HEALTH TECHNOLOGIES

Prescription Drug Laws Create Challenges for Telehealth

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While tremendous strides continue to be made in the growth and adoption of telehealth services, significant legal obstacles remain.  Among these obstacles are state drug prescribing laws.  In many states, physicians cannot lawfully prescribe drugs during a telehealth encounter, except in very limited circumstances.  For example, California requires that physicians perform a “physical exam” before prescribing drugs, and explicitly outlaws prescribing on “the internet” without a prior examination.  These restrictions vary from state to state, but many share certain characteristics, such as the following:

  1. In several states the law says that physicians cannot prescribe medication without first performing a “physical” examination (e.g. Alabama, Massachusetts, Tennessee and California).   This physical examination requirement is generally interpreted to mean that the physician must have an in-person encounter with the patient, but this is not necessarily the case everywhere. 
  2. Some states only limit telehealth prescribing to certain classes of drugs.  For example, Minnesota’s prescribing law requires that the physician complete an “in person examination” before prescribing controlled substances, muscle relaxants, and certain other classes of medication.  Louisiana has a similar restriction for certain controlled substances, but not other classes of drugs. 
  3. Many states now have prescribing laws that explicitly prohibit prescribing solely based on an internet questionnaire (e.g.  Louisiana and Mississippi) or internet consultation (e.g. Oregon).  

Nevertheless, there are some states that do explicitly permit certain forms of telemedicine prescribing (e.g. New Mexico and Virginia).   Historically, the most telehealth friendly prescribing laws have been in rural states, such as New Mexico, where access to care is a major issue.   

Among regulators and policymakers, the wisdom of granting telehealth providers more freedom to prescribe is very much in question.  As recently noted by the Center for Telehealth and eHealth Law (CTEL), growing concerns about widespread prescription drug abuse and illicit prescribing and dispensing activities on the internet are likely going to complicate efforts to improve prescribing laws for telehealth providers.  Additionally, the lack of standards for when and under what circumstances it is appropriate to prescribe drugs in a telehealth setting may be affecting progress in this area.  

In the current regulatory environment, telehealth providers that wish to prescribe drugs without a prior in-person encounter with the patient will need to carefully review the prescription drug laws in the states where they operate as well as the states where their patients are located, and may need different procedures and protocols across states in order to comply with each state’s laws.