Risk Perspectives in Telehealth: Online Prescribing
Laura M. Cascella, MA
An important aspect in the provision of 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 eliminate the need for the face-to-face encounters that are typical in traditional healthcare, lack of physical interaction creates patient safety and liability concerns — particularly in terms of medication prescribing. In an analysis of malpractice and telemedicine, the Center for Telehealth & e-Health Law found that "the majority of legal actions that have been brought against telehealth providers proceeded as a result of telemedicine practitioners prescribing medications over the internet, rather than actions having been brought because care was negligently administered through telemedicine."1
Additionally, in a review of legal barriers related to telehealth practice, 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
- Patients have received adequate physical examinations
- Patients accurately portray their medical histories and symptoms
- Appropriate state licensing requirements have been met2
To address these concerns, healthcare providers who plan to 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 prescriber 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.
However, 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.).3
In recent years, telehealth advocates, including the American Telemedicine Association, 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 from state to state 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, such as 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
More Resources
For more information about the federal regulations pertaining to online prescribing of controlled substances, visit the DEA website. State-specific information about online prescribing can be obtained from the Center for Connected Health Policy's State Laws and Reimbursement Policies webpage as well as state medical, osteopathic, dental, and nursing boards.
1 Natoli, C. M. (2009, December). Summary of findings: Malpractice and telemedicine. Center for Telehealth & e-Health Law. Retrieved from http://www.ctel.org/research/Summary%20of%20Findings%20Malpractice%20and%20Telemedicine.pdf
2 Center for Connected Health Policy. (n.d.) Common legal barriers. Retrieved from https://www.cchpca.org/telehealth-policy/online-prescribing
3 21 U.S.C. § 802.54
4 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
