In today’s video, we turn back to the question of physician prescription online, but this time, we will focus on comparing some of the telemedicine laws across different states.

I’m Michael H. Cohen, founding attorney of the Cohen Healthcare Law Group. We help healthcare industry clients just like you navigate healthcare and FDA legal issues so you can launch, or continue to scale, your health and wellness service or product.

Previously, on Cohen Healthcare Law Blog …. We talked about a couple of different things. First, the legal and regulatory risk exposure of a physician who wishes to prescribe controlled substances to patients in different states.  Second, we talked about legal issues for a telemedicine platform that markets healthcare and wellness services to consumers and connects them to a network of medical doctors.

Third, we discuss a variety of legal issues, from: medical licensing and telemedicine rules, to the good faith in-person prior examination, to supervision of Nurse Practitioners and Registered Nurses, to privacy and security and HIPAA, to informed consent practices, to general risk management.  We also talked about FDA and FTC issues for the telehealth platform promoting online prescription for different health conditions.

Today, we’ll simply go through a series of statutes from a variety of states to give you the flavor for how these laws are configured.

Let’s start with California.  In California, Business & Professions Code Section 2242(a) was in fact amended relatively recently to liberalize telemedicine policy.  It now states: “(a) Prescribing, dispensing, or furnishing dangerous drugs as defined in Section 4022 without an appropriate prior examination and a medical indication, constitutes unprofessional conduct. An appropriate prior examination does not require a synchronous interaction between the patient and the licensee and can be achieved through the use of telehealth, including, but not limited to, a self-screening tool or a questionnaire, provided that the licensee complies with the appropriate standard of care.”

Notice that second sentence.  It allows what the first sentence formally seemed to prohibit.  Let’s read it again: An appropriate prior examination does NOT require a synchronous (meaning same time) interaction between the patient and the licensee and can be achieved through the use of telehealth, including, but not limited to, a self-screening tool or a questionnaire, provided that the licensee complies with the appropriate standard of care.”  The NOT is important. You’re allowed to do it as long as you comply with standard of care.

By contrast, let’s look at some other state laws.  Note, these might be amended by the time you watch this video, so our intent today is simply to give you the flavor of how idiosyncratic they are by state.

This next one is from Arizona, 32.1401(27)(tt).  “Unprofessional conduct includes the following, whether occurring in this state or elsewhere … Prescribing, dispensing or furnishing a prescription medication or a prescription-only device … to a person unless the licensee first conducts a physical or mental health status examination of that person or has previously established a doctor-patient relationship.”

But then, as in California, notice the next liberal sentence: “The physical or mental health status examination may be conducted during a real-time telemedicine encounter with audio and visual capability, unless the examination is for the purpose of obtaining a written certification from the physician for the purposes of title 36, chapter 28.1” (which has to do with marijuana). So you can do it by audio-visual means, that’s the bottom line.

Next, Colorado. Like many states, it allows “occasional consultation” by an out-of-state physician but not unlicensed practice. So, you don’t have the same allowances.

Last, this from Washington State—very liberal, as you might expect: “Prescribing medications, whether in person or via Telemedicine, is at the professional discretion of the practitioner. The practitioner, in accordance with current standards of practice, must evaluate the indications, appropriateness, and safety considerations for each Telemedicine prescription.”  This is not a statute, but a rule from the Washington State Department of Health.

“Telemedicine prescriptions entail the same professional accountability as prescriptions incident to an in-person contact. Where appropriate clinical procedures and considerations are applied and documented, practitioners may exercise their judgment and prescribe medications as part of Telemedicine. Especially careful consideration should apply before prescribing DEA-controlled substances, and compliance with all laws and regulations pertaining to such prescriptions is expected. Measures to assure informed, accurate and error-free prescribing practices (e.g. integration with e-Prescription services) are encouraged.”

If you’re interested in an early read on your healthcare business model, you might benefit from having a Legal Strategy Session with a member of our Legal Team which we describe in our website.

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