As so many of you know, the barriers to the wider adoption of telemedicine are numerous. In listening to various stakeholders in the telemedicine space over the years, I consistently hear the same barriers being discussed:
- Multistate licensure for physicians and other health professionals;
- Data privacy and security;
- Coverage and reimbursement;
- Credentialing and privileging; and
- Corporate practice of medicine
One issue, however, that gets short shrift in my view is the issue of online prescribing—an issue that presents as formidable a barrier to the wider adoption of telemedicine as any other. Before I take a deeper dive, I should mention that by online prescribing I do not mean e-prescribing, which generally refers to the issuance of a prescription electronically instead of in written form. What I mean by online prescribing is physicians prescribing medications to patients via a telemedicine visit when the physician has never had an in-person encounter with the patient. Instead, the physician relies solely on information obtained through the telemedicine encounter.
Generally, and unless one of a very limited number of exceptions applies, states require that a physician first establish a valid physician-patient relationship before he or she may prescribe for the patient. In most states, a physical examination or evaluation of the patient is one of the requirements to be met in order to establish that relationship. But just what constitutes a valid “physical examination” varies from state to state? As you might imagine, this is critical in telemedicine because in many cases, telemedicine providers will be unable to physically examine or evaluate new patients in-person or face-to-face. States address the issue in a variety of ways which has predictably led to a patchwork of sometimes inconsistent state laws.
In- Person Physical Exam
Some states explicitly require an in-person examination or evaluation before a physician may engage in online prescribing for a patient. Under Arkansas law, for example, in the absence of a prior and proper patient-practitioner relationship, a physician must perform an in-person physical examination of the patient adequate to establish a diagnosis and to identify underlying conditions or contraindications to the treatment recommended or provided.
Other states, while requiring a physical examination or evaluation, do not explicitly use terms such as “in-person” or “face-to face” to describe the exam. Many have taken that to mean that the physician must have an in-person encounter with the patient—a very reasonable conclusion in my view—and one shared by most medical boards with which I speak. Some observers, however, have concluded that because the requirement in these states is not as explicit as it is in other states (i.e., Arkansas), a reasonable argument can be made that a physical examination may occur by electronic means—especially if the examination results in the same information being obtained had the exam occurred in-person. This is a gray area that will likely become clearer as many states re-examine their telemedicine standards.
Physical Exam by Other Means
Significantly, there are a number of states that explicitly allow physical examinations or evaluations to be performed by electronic means or via telemedicine technologies. For example, in Maryland, if no prior in-person, face-to-face interaction with a patient has been done, a physician may “incorporate real-time auditory communications or real-time visual and auditory communications to allow a free exchange of information between the patient and the physician performing the patient evaluation.” In Virginia, a physician must perform an examination of the patient “either physically or by the use of instrumentation and diagnostic equipment through which images and medical records may be transmitted electronically.” Hawaii, New Mexico, and a handful of other states take a similar approach.
Given the various approaches, what is a telemedicine provider to do? Some help is on the way. The Federation of State Medical Boards, a national organization that represents 70 medical and osteopathic state medical boards in the United States, has developed the “Model Guidelines for the Appropriate Use of the Internet in Medical Practice” which among other things addresses the issue of prescribing head on:
- Prescribing. If using telemedicine technologies, where prescribing may be contemplated, providers must implement measures—left to the discretion of the physician—to uphold patient safety in the absence of traditional physical examination. Measures should guarantee that the identity of the patient and provider is clearly established. To assure patient safety in the absence of physical examination, telemedicine technologies should limit medication formularies to those considered safe by the state medical board.
Some states have adopted the FSMB’s Model Policy in whole or in part. It is my hope that many more states will adopt the Model Policy as it represents a very positive step in the right direction toward harmonizing the disparate, inconsistent, and often confusing patchwork of state laws governing online prescribing.