In today’s video, we discuss whether a good faith exam is required before prescribing via telemedicine.  We’ll focus not on the individual physician’s practice but rather on a telehealth startup.

Hi, I’m Michael H. Cohen, founding attorney of Cohen Healthcare Law Group. We help healthcare industry clients like you, navigate the complex terrain of healthcare and FDA laws so you can launch, grow, scale your healthcare venture.

The requirement of a good faith exam with new patients—also known as a prior, appropriate examination—has plagued both healthcare practitioners with brick-and-mortar practices, medical spas, and telemedicine startups, particularly the health and wellness apps. Put simply, does the medical doctor need to see the patient in person at least once, or at least once a year, before treating them; what about before prescribing to them.

In the early days of telemedicine, treating without seeing the patient was considered a violation.  Some early cases and medical board decisions emphasized that the use of an online questionnaire, without more, was grossly inadequate.  In those early days, of course, people were still hesitant to even use a credit card online (remember those days?).  Statutes, regulations, and rules promulgated by State medical boards particularly required a good faith, in-person appropriate prior exam before prescribing medication, and especially controlled substances.

Over time, this strict requirement loosened, and more States began to be satisfied without an in-person exam, as long as the standard of care was met, and that was said to cover the bases.  This can be tricky if State medical boards then interpret the standard of care to go back and require that the physician see the patient in-person. So, if that happens, interpretation defaults the looser, more modern legal rule back to the old one of requiring the good-faith in-person exam.

Mind you, this can be tricky because there is a patchwork of laws across States, and State-by-State legal research is usually necessary for a telehealth app that is designed to work nationally and also be tailored by state. In other words, you got to check whether a particular State’s latest legal rules are on the stricter or more relaxed side or something in-between; and a lot also depends on the business model and whether it involves treatment, prescription, or prescription of controlled substances, or maybe it’s just coaching.

If your telehealth platform focuses on behavioral and mental health and deploys both psychiatrists and psychologists, social workers and other mental health providers, then you might have different company rules internally for those that are prescribers, versus those that stick to cognitive and more of the talking therapies.

Thanks for watching. Please contact us with your questions. We have helped so many healthcare industry clients navigate and we’d love to help you on your journey to success!