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One of the biggest pain points for telemedicine providers 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 currents state of remote prescriptions and what to expect with upcoming changes in federal laws.
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 Providers?
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 Providers?
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.
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 providers 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.
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 providers, 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.
Teladoc prescription policy: https://www.teladoc.com/providers/prescription-policy/
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.
To better understand what’s next for telemedicine prescribing law, we asked healthcare lawyer and telemedicine expert with Foley & Lardner LLP, Nathaniel Lacktman, for input on what to expect.
How do you think President Trump’s SUPPORT Act will change the telemedicine landscape?
The Act should open up new opportunities for legitimate telemedicine prescribing of controlled substances, which are often an essential component of patient therapeutic treatment programs. This is particularly true in the mental health area, including scheduled medications used for adolescent and adult treatment (e.g., stimulant medications). The federal law will require the DEA to open up a special telemedicine registration for controlled substance prescribers, as an exception to the Ryan Haight Act’s in-person exam requirement.
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.