One of the biggest pain points for telemedicine clinicians has been navigating the confusing world of state and federal prescribing laws. Recent congressional acts are changing the landscape for the better. Find out what this means for you as a telemedicine provider and review the existing and upcoming rules on prescribing in telemedicine.
To better understand the current state of prescribing in telemedicine, it’s important to know where we’ve been. Follow along as we explore the history and current state of remote prescriptions and what to expect with upcoming changes in federal laws.
Can telehealth prescribe medication?
With the growth of telemedicine in recent years—in large part due to the COVID-19 pandemic—many patients and providers are interested in managing health conditions virtually. While telemedicine comes with a number of benefits, including convenience, increased patient engagement, and better health outcomes, the process can become complicated when prescription medications are involved.
The simple answer to whether providers can use telehealth to prescribe medication is that yes, healthcare professionals can prescribe drugs to their patients virtually. But it’s important to note that typically, not all health conditions can be treated via telemedicine. Federal laws state that certain prescription medications require at least one in-person visit so the patient can be appropriately evaluated before a prescription is issued.
COVID-19 provisions for telehealth prescriptions
During the COVID-19 public health emergency, the Drug Enforcement Agency (DEA) dropped the in-person exam requirement, making it legal for physicians to prescribe all medications via telehealth without first seeing the patient face to face. It is not known how long this temporary authorization will remain in effect or what will happen when it’s lifted.
Prescription restrictions before COVID
Prior to COVID, which medications could and could not be prescribed over a telehealth appointment without an in-person visit? The answer to that question depends on whether the medication is a controlled substance.
Typically, a physician will have no trouble prescribing a non-controlled substance, including most medications for infections and chronic conditions, via telemedicine. Such drugs include antibiotics, most blood pressure and cholesterol medications, asthma inhalers, and diabetes medications, including insulin.
Due to federal law (more on that below) issues arise when the medication in question is a controlled substance. These drugs are tightly controlled by the government, as they may be abused or lead to addictions. Examples of controlled substances to treat medical conditions include stimulant medications methylphenidate (Ritalin) and amphetamine (Adderall), which help manage symptoms of attention deficit hyperactivity disorder (ADHD), and opioids, including morphine, oxycodone (OxyContin), hydrocodone (Vicodin), and codeine, among others.
In order to prescribe a controlled substance, a doctor must have a DEA license. To fill prescriptions, a pharmacist must also hold a controlled substance license. Practitioners must meet their state’s licensing requirements and pay necessary application fees to obtain a license. A DEA license needs to be renewed every three years.
What is the Ryan Haight Act?
The Ryan Haight Act took effect in April of 2009 in an effort to thwart the proliferation of rogue and fraudulent online pharmacies and the illegal distribution of controlled substances. The act also contains rules about prescribing controlled substances via telemedicine.
Ryan Haight was an 18-year-old who died from an overdose of Vicodin that he procured from an online pharmacy without a prescription.
What has Ryan Haight meant for telemedicine clinicians?
The act requires providers to conduct at least one in-person visit with a patient prior to prescribing a controlled substance online OR the circumstance must meet one of seven narrow “practice of telemedicine exceptions.” While the intent of the law is benevolent, this has severely limited the ability of mental health practitioners and other behavioral health providers to provide appropriate care for patients suffering from pain, addiction, or mental health diseases via in-home telemedicine.
As a result of the law, most telemedicine companies have overarching policies banning their providers from prescribing controlled substances at all.
What does President Trump’s SUPPORT for Patients and Communities Act mean for clinicians?
In October of 2018, President Trump signed a declaration to loosen the restrictions on controlled substance prescriptions via telemedicine to allow for a better response to the nation’s growing opioid crisis. The declaration is intended to expand care to rural communities by removing the requirement for an in-person visit prior to prescribing medication-assisted treatments for opioid addiction.
In addition, the act allows providers to obtain a special registration to prescribe controlled substances via telemedicine without the need for an in-person exam.
Neither the declaration nor the special registration are yet in effect, but it’s expected these changes will be implemented in the coming year as the DEA has a deadline of October 2019 to officially enact the law.
Differences in Telemedicine Prescribing Between States
While the DEA enforces Ryan Haight on a national level, individual states also have the right to define their own telehealth policies.
In order to combat the shortage of mental healthcare providers, expand behavioral health services, and help fight the opioid crisis, many states have opted to loosen rules on controlled substances for more treatment flexibility.
Connecticut allows providers to prescribe Schedule I-III controlled substances but bans opioid prescribing.
Indiana allows providers to prescribe drugs to treat or manage opioid dependence.
Delaware, Florida, Michigan, New Hampshire, Ohio, and West Virginia also allow remote prescribing of controlled substances when certain exceptions are met.
For telemedicine clinicians in these states, it’s been challenging to navigate the intersection of both state and federal laws to ensure compliance.
All states used to require physicians to visit with a patient in-person before conducting a telehealth visit. Recognizing that this is a barrier to telemedicine usage, many states have abolished the rule. However, some states still require or recommend as a best practice that mid-level providers see patients for an in-person exam before conducting a telemedicine consult where controlled substances may be prescribed.
How to get a prescription online?
In order to get a prescription, patients must have a consultation with a provider. In many cases this consultation can take place virtually via telehealth.
This is often extremely preferable for patients, as they do not have to drive or take public transportation to a physician’s office, take time off work, arrange child care, or sit in a waiting room for long periods of time. Instead, they can see their doctor and get their prescription from the comfort of their own home without much disruption to their schedules. For providers, this typically translates to fewer last-minute cancellations and better engagement from their patients.
Providers who offer telemedicine will typically have the option to book a virtual visit online, without needing to pick up the phone and call the office. The patient can check their availability against their doctor’s and book an appointment within minutes.
The appointment itself works the same as if it were in person. The provider evaluates the patient by asking questions about their symptoms, including their frequency and severity. If the provider feels they can diagnose the patient without an in-person examination and medication is required, they can send a prescription to a local, online, or mail-in pharmacy. If further evaluation is needed, such as an in-person exam or lab tests, these can be arranged during the virtual visit.
Telemedicine can often be most useful in managing care for patients with chronic conditions. In a traditional office setting, monitoring these patients can be difficult, as it requires time and travel on the patient’s end. This can be particularly challenging for patients in rural areas. Telemedicine allows for more frequent check-ins with patients, since physicians can monitor symptoms and easily adjust medication doses or prescribe new drugs as needed.
Telemedicine Company Prescription Policies
Many of the national telemedicine companies follow federal guidelines for telemedicine prescriptions and have an overarching policy of no prescribing for schedule I - III drugs. This includes all narcotics and painkillers as well as other drugs used in mental health treatment like the anticonvulsant gabapentin.
For clinicians, this means you don’t have to worry about keeping up with state-by-state regulations when practicing with a national platform. If you are switching between national and regional platforms though—which may follow different guidelines—it’s still important to stay informed about policies in the states you are licensed.
Read about the Teladoc prescription policy here.
Doctor on Demand prescription policy: “Doctor On Demand physicians are able to prescribe a wide range of drugs, which can be useful for infections, allergies, skin conditions or sports injuries. Please note that Doctor On Demand does not prescribe narcotics or pain medications that have been designated as U.S. Controlled Substances as a Schedule I, II, III or IV drug. However, many of the prescriptions available in an office setting or urgent care can be prescribed.”
With the SUPPORT Act expected to be enacted by the end of the year, it will be interesting to see how the national telemedicine companies react and whether policies change based on the special registration allowance.
How can patients ensure a safe virtual care experience?
Some patients, particularly those who are used to in-person visits with their doctors, may wonder “is telehealth safe?”
Same quality of care
First, it’s important to note that all physicians are expected to provide the same quality of care during telehealth visits as they do when seeing patients in person.
Familiarity with the equipment and technology involved with telemedicine will also help ensure patient safety during virtual visits. Many physicians who are new to telehealth find it helpful to do a test run to troubleshoot any issues before starting with patients.
It can also be beneficial to give patients a checklist to prepare for their telehealth appointment. This can include asking them to test their own equipment (phone, tablet, or computer) before their appointment, giving them a number to call if they experience any technical difficulties, and asking them to find a quiet, private place for the virtual visit.
This is particularly important to ensure the patient’s privacy when discussing their symptoms and prescription medications. Suggestions can include a private room in their home, inside their car, or outdoors away from other people.
Security and privacy
Physicians should ensure patients that virtual visits are secure. While patients use their regular internet service or data plan to access virtual visits, physicians use telehealth platforms with secure patient portals to message, call, and video chat with patients.
To ensure safety and privacy, physicians should instruct patients to password protect their wireless connection, keep their devices protected with antivirus software, avoid using public WiFi networks to access telehealth services, and avoid using devices shared with people outside of their home to attend their virtual appointment.
Assure patients that prescriptions will be sent securely to a local pharmacy for in-person pick up or to a mail-in or online pharmacy to be delivered to their home.
What to Expect for the Future of Telemedicine Prescribing
To better understand what’s next for telemedicine prescribing law, we asked healthcare lawyer and telemedicine expert Nathaniel Lacktman with Foley & Lardner LLP for input on what to expect.
Do you foresee new opportunities for telemedicine providers that weren’t there before? (i.e. more jobs, different types of jobs, or roles in demand?)
Yes. There is already a notable uptick in physicians seeking to deliver care solely via telemedicine. It can help with burnout, improve access, and reduce the stress of double or triple-booking patient appointments often seen in the traditional in-person medical office setting. The new federal law should notably improve telemedicine opportunities in specialties such as psychiatry.
Are there still changes needed in regards to telemedicine and prescribing? If so, how could they better the environment for practicing telemedicine?
Many states already expressly allow telemedicine prescribing of controlled substances. The enactment of the new federal changes may spark parallel changes to state law. Telemedicine advocates on the state level should educate lawmakers how the new federal law will serve to encourage, rather than inhibit, clinically appropriate telemedicine prescribing practices for controlled substances.
Like much in telemedicine, standard prescribing law is still being worked out. It’s good practice to follow along with the latest telemedicine prescribing regulations in order to ensure you are complying with legal and ethical standards of care.
Without seeing routine patients in the office, it’s nearly impossible to establish a relationship and deep understanding of a patient’s medical history. That’s why, while seemingly bureaucratic and tedious, telemedicine prescribing laws are critical to maintaining public health and the overall wellness of your telemedicine patients.