There is a proposal moving through Congress that has some interesting implications for telemedicine. Sen. Diane Feinstein (D-CA) and Rep. Bill Cassidy (R-LA) have proposed an amendment to the Online Pharmacy Safety Act that would impose additional restrictions on when and under what circumstances practitioners can prescribe medication under the Federal Food, Drug, and Cosmetic Act. Although the Online Pharmacy Act is primarily intended to put an end to illegitimate pharmacies and the fraudulent sale of drugs online, as the American Telemedicine Association, HealthLeaders, and others (such as GlobalMed) have pointed out, the proposed amendment from Cassidy and Feinstein could have more far-reaching implications for telemedicine.
The proposed amendment would provide some limits on when and under what circumstances telehealth practitioners can prescribe drugs.
- Generally, for non-controlled substances, the prescriber would have to be a “qualified offsite telehealth practitioner”, which would require among other things, that the prescriber be licensed in the state where the patient is located and provide services to the patient through a medical encounter in real-time or instantaneously.
- Generally, for controlled substances, with some exceptions, prescriptions would have to be provided to patients who are either in the physical presence of another practitioner or physically located and receiving treatment in a hospital or clinic.
- The amendment would outlaw prescriptions made solely based on the completion of a questionnaire.
The practical effect of these telemedicine requirements would largely vary from state to state. The proposed amendment is only meant to serve as a statutory floor and many states have more stringent telemedicine prescribing laws than these. For example, there are still a number of states (especially in the northeastern United States) that do not allow physicians to prescribe telemedically unless the physician has first had a physical in-person encounter with the patient. The proposed amendment requires such an in-person encounter with the patient, but then creates an exception for qualified offsite telehealth practitioners with respect to non-controlled substances. This is a significant feature of the amendment because it is a departure from the more stringent physical in-person encounter requirements found in many states.
However, there are still reasons to worry that this legislation could have adverse and unintended consequences. Scott Mace at HealthLeaders recently reported (here) that the requirements for prescribing controlled substances under this amendment could jeopardize a successful telepsychiatry program in rural North Carolina. As this situation in North Carolina illustrates, telehealth is a very difficult area to regulate because both telehealth and the technologies supporting it are evolving rapidly, and therefore there is heightened risk that laws such as the proposed amendment form Feinstein and Cassidy would have unintended consequences.
Of course unintended consequences are not always bad. The fact that this proposed amendment would allow qualified telehealth practitioners to prescribe certain drugs (non-controlled substances) without first having a physical in-person encounter with the patient might persuade some states that continue to require such physical in-person encounters to reconsider. Additionally, more federal safeguards around telemedicine prescribing might make some states more comfortable with proposals to relax their own requirements.