From the Center for Connected Health Policy:
Last month the Drug Enforcement Administration (DEA) clarified that it would be extending the public health emergency (PHE) allowances for using telehealth to prescribe controlled substances for an additional six months after the end of the PHE (May 11, 2023). This would mean that practitioners may still prescribe controlled substances to patients via telehealth without having had an in-person exam or meeting one of the other exceptions found in federal law until November 11, 2023. After November 11, 2023, those practitioners who during the pandemic and the six months after the end of the PHE used telehealth to prescribe to patients without conducting an in-person exam, may continue to prescribe controlled substances to those patients for an additional year. However, during that time the practitioners will need to meet the in-person exam requirement or one of the other exceptions currently in federal law for those patients. The DEA, in the meantime, is continuing to work on regulations regarding the use of telehealth to prescribe controlled substances.
While significant, the federal laws and actions of the DEA are only part of the story regarding the use of telehealth to prescribe. While federal law does dictate how telehealth is used to prescribe controlled substances, state laws impact the prescribing of all other medications, which can include controlled substances, and devices. Therefore, practitioners need to be aware of what each state’s policies are regarding the use of telehealth to prescribe. This can be very complicated as the states all vary in their approaches in how to address this issue and while a practitioner may be very familiar with their own state’s policies, they may face a very different situation if a patient is in a different state. What follows are a few things to be aware of when trying to navigate this landscape, as well as some interesting policy developments. (NOTE: the below should not be considered legal advice. CCHP always recommends you consult with legal counsel for a formal legal opinion.)
Whose policy do I need to follow? My state or the state the patient is located in?
The simple answer is “both” but the reasons behind that answer can be a little more involved. If the patient is located in another state and a practitioner is providing services into that state, most states will view that practitioner as practicing medicine within their state borders, therefore, the policies of the patient’s state regarding the practice of medicine would apply to that practitioner, regardless of where that practitioner is located. Most telehealth practitioners are probably familiar with this concept as that is how licensure in general works: when you practice medicine within a state’s borders, generally most states require you to be licensed by that state. The prescribing laws and regulations operate in the same manner in that out-of-state providers are required to follow the patient’s state’s policies around prescribing. Additionally, language around prescribing policy may also contain references that the practitioner would need to be licensed by the patient’s state.
Your own state’s policies are also important. Typically, states do not necessarily have policies regarding the actions conducted within another state in which a practitioner may be involved. However, we are starting to see these types of policies appear. Part of this has been driven by the Supreme Court decision in Dobbs v. Jackson that rolled back access to abortion services. Practitioners have become increasingly concerned regarding providing services via telehealth to patients seeking reproductive health services particularly as states have passed more restrictive laws, some with criminal penalties. Some states have been looking to address what might happen or can be expected when a health practitioner they license provides services in another state. For example, Oregon has Administrative Rules regarding practicing across state lines. Overall, the Oregon Rules appear not to impose any duties that a practitioner would not have had regardless of whether these rules existed or not, but it’s interesting to note that the rules only require the practitioner to abide by the Oregon Medical Practice Act and rules, and is silent regarding the other state the practitioner is providing services into. It is possible we will see more states follow in Oregon’s footsteps and adopt policies regarding how they view their licensees’ out-of-state interactions.
Besides controlled substances, are there other limitations as to what can be prescribed using telehealth to prescribe?
Many are likely aware that a number of states have limitations on the use of telehealth to prescribe an abortion-inducing medication. However, that is not the only prescription that may have specifications or limitations on how telehealth is used. Some states have specific policies on using telehealth to prescribe glasses/contact lenses, hearing aids and medical marijuana. Examples include Georgia, Illinois, and Louisiana who have specific policies regarding how telehealth is used to prescribe eye glasses/contact lenses. Illinois’ SB 1721 allows the use of telehealth to conduct an evaluation for a hearing aid in some cases, but limits the use of technology for patients under 18 years of age. Florida’s HB 387 is currently making its way through the Legislature and would allow the use of telehealth to conduct patient examinations and evaluations for renewals of physician certifications for the use of marijuana. Practitioners do need to keep in mind that prescribing rules and policies are not only limited to medications!
Do states require an in-person visit before prescribing like federal law requires for controlled substances?
Some prescribing policies may require an in-person exam or the in-person presence of a provider with the patient when the medication is being administered. However, for most non-controlled substances, the majority of states allow an exam to be conducted via live video. One thing to note, some states do not allow the use of audio-only or an asynchronous option (such as an online questionnaire) to be used to meet this prior in-person exam requirement. Additionally, some of these policies related to telehealth aren’t necessarily found in the section related to prescribing. For example, a state’s law regarding how a patient-provider relationship is formed (can telehealth be used to do that?) is very important to whether a practitioner may legally prescribe to a patient. In Tennessee Rule Annotated 0880-02.14(7)(a):
Except as provided in subparagraph (b), it shall be a prima facie violation of T.C.A. § 63-6-214(b)(1), (4), and (12) for a physician to prescribe or dispense any drug to any individual, whether in person or by electronic means or over the Internet or over telephone lines, unless the physician, or his/her licensed supervisee pursuant to appropriate protocols or medical orders, has first done and appropriately documented, for the person to whom a prescription is to be issued or drugs dispensed, all of the following:
Perform an appropriate history and physical examination;
Make a diagnosis, consistent with good medical care;
Formulate a therapeutic plan and discuss it with the patient;
Ensure the availability for appropriate follow-up care.
Some may ask what is considered “an appropriate history and physical examination?” This is where some states’ policies may be a bit of a gray area because there may not actually be a specific definition as to what constitutes “an appropriate history and physical examination.” Sometimes state licensing boards may have more specifics or there may be language that notes exams conducted via telehealth will be held to the same standards as one conducted in-person. This is an area that could get a little tricky for practitioners to navigate as a clear-cut answer may not be readily apparent. One thing a provider could do to gain more clarity is contact the appropriate licensing board to see if they can provide further guidance.
Are there other issues that touch upon telehealth and state prescribing policies that I should be aware of?
An interesting development that we’ve seen on the state level has been regarding policies around pharmacies and prescriptions issued via telehealth. One widely publicized case involved pharmacies refusing to fill prescriptions, particularly for controlled substances, that were made via telehealth. Last year, CVS and Walmart said they would stop filling prescriptions for controlled substances issued by Cerebral Inc. and Done Health. Some states are now taking action to address this. For example, Virginia earlier this year passed HB 2374, which would “(Prohibit) pharmacists from refusing to fill prescriptions solely on the basis of a prescriber's use of a telemedicine platform to provide services. The bill also prohibits pharmacists from prioritizing dispensing prescriptions from a prescriber who does not use telemedicine over prescriptions from a prescriber who does use telemedicine based solely on the prescriber's use of a telemedicine platform to provide services.” Additionally, New Jersey’s A4545/S1325 would prohibit pharmacies from charging an additional fee for processing prescriptions that were transmitted by telephone or electronic means.
While the federal policy on controlled substances is definitely important, it is not the only prescribing policy that will impact the use of telehealth. It is important to keep an eye on what individual states are doing as policies they enact can impact so many parts of the use of telehealth to deliver health services. You can use CCHP’s Policy Finder to see what the current state policies around some of these issues are and CCHP’s legislation tracker to follow what state telehealth legislation is being considered this year.