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Telemedicine: Is Prescription Writing Allowed?

Background

Each state has unique laws regarding the scope of practice permissible through telemedicine. The variations in state laws and policies range from a complete prohibition on the practice of telemedicine (ID) to permissive environments where there are no additional regulations above existing standards of medical care (FL). The immense range in law means that it is essential for physicians to consult with the laws of all applicable states before providing telemedicine services. These states include both the state where the physician is located and the state where the patient is located.

A source of confusion is the practice of prescribing medication via telemedicine. While state regulations of telemedicine run the gamut, there is a general consensus (one that the AMA supports) that care provided via telemedicine needs to meet the same standard as care provided in person and that there must be, at a minimum, an established patient-physician relationship before any prescriptions are issued.

In general, AMA policy supports the practice of prescribing medicine using telemedicine technologies. However, AMA policy makes it clear that physicians who prescribe using telemedicine need to first establish a patient-physician relationship that includes obtaining a medical history, describing treatment risks, benefits, and options, arranging for appropriate follow-up care, maintaining health records, and recording any prescriptions issued in the patient’s file. AMA Policy H-120.949, Guidance for Physicians on Internet Prescribing (Reaffirmed at the 2005 Annual Meeting). So while the AMA supports the practice, it is essential that a patient-physician relationship exists. The issues that arise are when does that relationship develop, can that relationship be established through remote interactions alone (i.e. in the absence of any physical encounters), and if a relationship exists is it permissible for the physician to issue prescriptions. The second question is where states differ the most.

Establishing a Patient-Physician Relationship

AMA’s Code of Medical Ethics states that “a patient-physician relationship exists when a physician serves a patient’s medical needs”. Opinion 10.015,The Patient-Physician Relationship, AMA Code of Medical Ethics (Adopted June 2001). Alone, this definition is ambiguous as to whether or not the patient-physician relationship can be formed via telemedicine. The AMA’s Council on Medical Service (CMS) provided additional guidance in a report adopted at A-14. In this report, CMS clarified how a patient-physician relationship can be established stating that “[p]rior to delivering services via telemedicine, the Council believes that a valid patient-physician relationship must be established, through at minimum a face-to-face examination. The face-to-face encounter could occur in person or virtually through real-time audio and video technology.” AMA Policy H-480.956,Coverage of and Payment for Telemedicine. This allows physicians to establish a patient-physician relationship and to prescribe medications via telemedicine but would still prohibit issuing prescriptions based on a relationship established solely through online questionnaires. AMA policy also endorses the establishment of a patient-physician relationship when consultation is with another physician who has an established relationship with the patient or when the encounter meets evidence based standards of a specialty society such as radiology or pathology. Finally, AMA policy lists certain situations in which a relationship is not required. These include on-call, cross coverage situations, emergency medical treatment, and other exceptions that become recognized as standards of care.

AMA policy requiring a face-to-face encounter sits in the middle of the spectrum of state law which ranges from requiring an in-person encounter to establish a relationship (NH) to accepting relationships formed through telemedicine technology with no detailed requirements (FL).

The Federation of State Medical Boards’ (FSMB) Model Policy on telemedicine is similar to that of the AMA. The FSMB policy would permit patient-physician relationships to be formed based solely on virtual encounters, but later clarifies that the term telemedicine does not apply to audio only encounters. It is important to note that unlike the FSMB, many states do include email and telephone communication in the definition of telemedicine. The issue of regulation of formation of patient-physician relationships is further complicated by the fact that many states use “face-to-face” to mean an in-person encounter (e.g. CA, NH).

State Licensure

Once a relationship has been established, the practice of telemedicine still requires appropriate licensing. The CMS report reinforces the AMA’s position that telemedicine providers need to abide by the appropriate licensing and credentialing requirements. AMA Policy H-480.956, Coverage of and Payment for Telemedicine. Physicians who use telemedicine to practice across state lines need to have a full, unrestricted license in the state where the patient is located in addition to the state where they are located. This requirement mirrors the most recent position taken by the FSMB.

One unique approach to licensing across stateliness for telemedicine is restricted, telemedicine only licenses. These licenses had been contemplated by the FSMB but have since been eschewed in favor of the multistate compact, a proposed system that would allow multistate licensing for physicians already board certified in one state. The compact is not aimed at telemedicine specifically. Its purpose is to create a system that would allow states to recognize the license to practice medicine issued by other states such that physicians could practice outside of their home state without having to apply for full licensure in each subsequent state. The resolution that gave rise to this compact passed unanimously in the FSMB’s House of Delegates, and has been publicly supported by a bipartisan group of fourteen senators. It is still in its draft stages, however. Currently, limited licenses for the practice of telemedicine, like those originally contemplated by the FSMB, do exist in some states (e.g. AL, LA, MN, MT, NM, OH, OR, TN, TX). The limited licenses allow physicians to practice across state lines without obtaining a full license in each state where patients are located. These limited licenses are offered and regulated by states where patients reside, and are not a universal license to practice anywhere within the United States.

While licensing and credentialing requirements can create obstacles for telemedicine providers it is essential that physicians follow them in order to avoid costly sanctions in addition to legal and professional consequences. Finally, physicians are advised to check that their liability insurance policy covers the practice of telemedicine and the practice across state lines if applicable.

Conclusion

Physicians must consult with counsel to ensure that they are not violating state law.  Each state has its own laws regarding telemedicine and many states do not allow physicians to issue prescriptions to patients whom they have never met in person. Some states go so far as to prohibit issuing prescriptions to existing patients if the physician has not physically examined the patient for that acute illness (ID). Reviewing the laws across states shows how critical it is for physicians to check the laws of the applicable states before writing a prescription for a patient whom they have not personally physically examined in connection with the prescription. Further, it is important to bear in mind that beyond what has been discussed here, standards of care that relate to the traditional, in-person practice of medicine still apply. Some traditional standards that should be remembered include: a patient’s right to choice of provider, patient access to a provider’s qualifications prior to an encounter, local regulations, evidence-based practice guidelines, and follow-up care.

Things to Consider When Practicing Telemedicine:

  • What requirements must be met in order to establish a patient-physician relationship?
  • What are the laws regarding internet prescribing?
  • What are the local laws governing issues such as consent, care of minors, reproductive rights, and end-of-life care?
  • How will you document this encounter and coordinate with the patient’s other providers?
  • What protocols do you have in place for emergency care?
  • Are there scope of practice laws in your state or your patient’s state that may apply to the encounter?
  • Do you have the necessary licenses to practice in your state as well as your patient’s state?
  • Does your liability insurance cover you for the manner in which you intend to practice?
  • Are there considerations pertinent to the patient’s health insurance that should be contemplated?

Disclaimer

The above information is based on general principals and does not constitute clinical or legal advice. The reader should consult an appropriate professional advisor for specific clinical or legal guidance.

Sample State Regulations

This list is meant to illustrate various state approaches and is NOT a comprehensive list of state-specific telemedicine regulations.

Florida: Florida applies the same standard of care as that used for in-person encounters. Technology used must be able to convey the same information necessary to meet the standard of care, and physicians are responsible for the quality of this technology. Controlled substances may not be prescribed through telemedicine. Patient relationships can be established through telemedicine alone. Fla. Admin. Code R. 64B8-9.014.

New Hampshire: The practice of telemedicine is controlled by regulations on the general practice of medicine. Under these rules a physician-patient relationship can only be established with an in-person exam, history, diagnosis, and treatment plan including prescriptions. Physicians cannot practice medicine without a relationship unless: it is an admission order for a newly hospitalized patient, it is the patient of another licensee for whom the physician is taking call, the patient has been examined by a physician assistant, nurse practitioner, or other licensed practitioner, or the physician is writing a prescription for a new patient who needs medication for a short-term basis prior to the first scheduled appointment. An exception to the requirement of a physician-patient relationship is the practice of teleradiology. Any out-of-state physician practicing teleradiology on patients located in New Hampshire must be licensed to practice medicine in New Hampshire. N.H. Rev. Stat. Ann. § 321:1-1-c.

Idaho: Idaho does not have specific telemedicine laws but recently disciplined a physician for calling in antibiotics over the phone. This was cited as a breach of the standard of care which requires physicians to examine a patient in person before prescribing medication. Idaho board disapproves of telemedicine (Idaho Press-Tribune, April 28, 2014).

California: California allows physicians to prescribe medications based on telemedicine encounters. Cal. Bus. & Prof. Code § 2290.5(a)(6). Physicians who use telemedicine are held to the same standard of care as if they treated the patient in person. California also requires that before beginning any telemedicine procedures the patient must verbally consent to the use of telemedicine and this consent must be marked in the patient’s file. Cal. Bus. & Prof. Code § 2290.5(b).

Hawaii : The only requirement for a telemedicine encounter in Hawaii is that it meets the necessary standard of care. H.R.S. § 453-1.3(d). Therefore, Hawaii law treats prescriptions based on telemedicine encounters as if they were issued after an in-person encounter. H.R.S. § 453-1.3.

Texas : Texas law allows physicians to issue prescriptions based on telemedicine encounters. 22 TX A.D.C. § 174.8. Texas law draws a distinction between telemedicine services provided to a patient who is at an established medical site and telemedicine services provided to a patient who is not at an established medical site. 22 TX A.D.C. § 174.2. An established medical site is defined as a location where there is “a patient site presenter and sufficient technology and medical equipment to allow for an adequate physical evaluation, as appropriate for the patient's presenting complaint” and does not include a private residence. 22 TX A.D.C. § 174.2. If the patient is at an established medical site a distant-site physician may use telemedicine to establish, diagnose, and treat a patient. 22 TX A.D.C. § 174.6. When the patient is not at an established medical site Texas law requires that the physician and patient have had at least one prior face-to-face encounter before providing treatment, including issuing prescriptions, where face-to-face is defined as either in-person or remotely with the patient at an established medical site. 22 TX A.D.C. § 174.7. Texas law also requires that the physician using telemedicine inform the patient of all the risks and benefits of telemedicine before beginning treatment. 22 TX A.D.C. § 174.5.

New Mexico : New Mexico allows physicians to establish a patient-physician relationship and issue prescriptions based on telemedicine encounters. NM A.D.C. § 16.10.8(L). The same standard of care applies in these situations and physicians are still prohibited from treating a patient based solely on online questionnaires. Id.

Useful Resources:

Federation of State Medical Boards Internet Prescribing - State Medical Board Policies/State Legislation

Federation of State Medical Boards Internet Prescribing Overview by State

Federation of State Medical Boards Telemedicine Overview

Relevant Policy:

H-480.956 Commercialized Medical Screening

H-160.937 The Promotion of Quality Telemedicine

H-480.974 Evolving Impact of Telemedicine

H-480.968 Telemedicine

D-480.999 State Authority and Flexibility in Medical Licensure for Telemedicine