Risk Perspectives in Telehealth: Online Prescribing

Laura M. Cascella, MA, CPHRM

An important aspect in the provision of care via telehealth is abiding by appropriate standards of care and scopes of practice, which are defined by federal and state laws, professional boards, accrediting agencies, specialty associations, payers, and so forth. Prescribing medications to patients as part of telehealth services — online prescribing — falls into the parameters of “standards and scope,” and healthcare providers must take precautions to ensure they are prescribing within legal and professional boundaries.

Although technology can sometimes eliminate the need for the in-person encounters that are typical in traditional healthcare, lack of physical interaction creates patient safety and liability concerns — including in relation to medication prescribing. In a review of policy issues associated with telehealth, the Center for Connected Health Policy notes that some of the concerns raised about online prescribing include whether:

• Appropriate provider–patient relationships have been established
• Providers have obtained adequate information about patients’ health statuses and histories
• Patients accurately portray their medical histories and symptoms
• Providers have enough information to make informed decisions regarding treatment¹

To address these concerns, healthcare providers who prescribe medications as part of telehealth services should fully understand and adhere to federal and state prescribing regulations.

Federal Prescribing Regulations

The Centers for Medicare & Medicaid Services addresses e-prescribing (but not specifically online prescribing) as part of its Medicare rules, and the Drug Enforcement Administration (DEA) addresses online pharmacies and telehealth as part of the Controlled Substances Act (CSA). In 2009, the Ryan Haight Online Pharmacy Consumer Protection Act (Ryan Haight Act) went into effect, which amended the CSA. The Ryan Haight Act prohibits the distribution of controlled substances via the internet in the absence of a valid prescription.

The validity of a prescription is based on various factors, such as whether the prescription was issued for a legitimate medical reason, whether the prescribing practitioner is appropriately licensed in the state where the patient is receiving care and treatment, and whether the practitioner examined the patient either in person or through the practice of telemedicine.

Healthcare organizations and providers should be aware that the CSA’s definition of the “practice of telemedicine” is specific and finite. For example, while receiving the telehealth services, the patient still must be treated by and physically located in a DEA-registered hospital or clinic, or the patient must be treated by and in the physical presence of a DEA-registered practitioner. Other limited exceptions also apply (e.g., in relation to services or care associated with the Indian Health Service, the Veterans Health Administration, emergency situations, etc.).²

In response to the COVID-19 pandemic, the DEA waived the requirement that providers prescribing controlled substances must conduct in-person medical evaluations as long as certain conditions are met:

• The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of their professional practice.
• The telemedicine communication is conducted using an audiovisual, real-time, two-way interactive communication system.
• The practitioner is acting in accordance with applicable federal and state laws.³

This waiver will remain in effect until the U.S. Secretary of Health and Human Services ends the COVID-19 public health emergency. However, telehealth advocates have urged Congress to ease restrictions related to telehealth practice and have recommended implementation of a special registration process to allow providers more flexibility in prescribing controlled substances via telehealth.⁴

State Prescribing Regulations

State regulations regarding online prescribing vary and may or may not include guidance for in-person evaluation, establishment of a doctor–patient relationship, written protocols, etc. Thus, healthcare providers should consider whether the states in which they practice:

• Set limitations on prescriptive authority for certain types of providers
• Put restrictions on how the provider–patient relationship is defined
• Require providers to have a preexisting relationship with the patient in order to engage in online prescribing
• Require a physical evaluation prior to online prescribing, and whether the provider must perform the evaluation in-person or whether it can be conducted using a telehealth medium (e.g., videoconferencing)
• Prohibit questionnaires and surveys as the sole basis for online prescribing
• Have other requirements related to patient medical history, written documentation, appropriate follow-up care, and emergency provisions

Like the federal government, states also might have revised their online prescribing regulations and requirements during the COVID-19 pandemic. Some states may plan to extend those pandemic-specific provisions, make them permanent, or end them at a designated time. Healthcare providers should stay up to date on shifting regulations and guidance in the states in which they practice.

More Resources

For more information about federal regulations pertaining to online prescribing of controlled substances, see the DEA’s information about the Controlled Substances Act. State-specific information about online prescribing can be obtained from the Center for Connected Health Policy as well as state medical, osteopathic, dental, and nursing boards.

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¹ Center for Connected Health Policy. (n.d.) Telehealth policy 101: A deeper dive into telehealth policy. Retrieved from www.cchpca.org/policy-101/?category=online-prescribing

² 21 U.S.C. § 802.54

³ U.S. Department of Justice Drug Enforcement Agency. (2022). COVID-19 information page. Retrieved from www.deadiversion.usdoj.gov/coronavirus.html; Center for Connected Health Policy, Telehealth policy 101: A deeper dive into telehealth policy.

⁴ American Telehealth Association. (2022, March 4). American Psychiatric Association, American Telemedicine Association, ATA Action and 69 other groups call on administration to permanently remove barriers to care. Retrieved from www.americantelemed.org/press-releases/american-psychiatric-association-american-telemedicine-association-ata-action-and-69-other-groups-call-on-administration-to-permanently-remove-barriers-to-care/; mHealth Intelligence. (2018, August 24). Using telehealth to coordinate care for substance abuse disorders. Retrieved from https://mhealthintelligence.com/features/using-telehealth-to-coordinate-care-for-substance-abuse-disorders

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