When can a physician prescribe medications without an in-person meeting with the patient?

As the result of technological advances in “telemedicine” (commonly defined as the use of electronic information and communications technologies to provide and support health care when distance separates participants), physicians are increasingly called upon to prescribe medications without an in-person visit at the time the prescription is issued. This memorandum recaps AMA policy concerning the proper standard of medical care and summarizes selected state requirements incident to such services.

Proper Standard of Medical Care

Under AMA policy guidelines, a patient-physician relationship must generally be established before medication can be prescribed through a telemedicine contact. As part of this relationship, the physician must (i) obtain a reliable medical history and perform a physical examination of the patient, adequate to establish the diagnosis for which the drug is being prescribed and to identify underlying conditions and/or contraindications to the treatment recommended/provided; (ii) have sufficient dialogue with the patient regarding treatment options and the risks and benefits of treatment(s); (iii) as appropriate, follow up with the patient to assess the therapeutic outcome; (iv) maintain a contemporaneous medical record that is readily available to the patient and, subject to the patient’s consent, to his or her other health care professionals; and (v) include the prescription information as part of the patient medical record.

If telemedicine technology is used to establish a physician-patient relationship, a video component is needed to facilitate a face-to-face encounter. Thus, under AMA guidelines, ordinary telephone calls and email communications are insufficient to establish the relationship needed to prescribe medications.

Exceptions to these requirements can arise in on-call or cross-coverage situations, emergency medical treatment, or other circumstances that have become recognized as meeting or improving the standard of care. A further exception can arise if the medication is prescribed in consultation with another physician who has an ongoing professional relationship with the patient and who has agreed to supervise the patient’s treatment, including use of any prescribed medications.

Additional information regarding the proper standard of medical care in prescribing medications without in-person patient meetings can be found in AMA Policy H-120.949, Guidance for Physicians on Internet Prescribing and in AMA Policy H-480.956, Commercialized Medical Screening.

State Requirements

In all instances, physicians must satisfy any state licensure laws applicable to the practice of medicine; this requirement may be of concern if the patient is located in a state other than that in which the physician is located. Beyond this general consideration, specific medical board requirements for prescribing in the absence of an in-person meeting vary from state to state. A review of selected state requirements follows; this should not be deemed exhaustive:

Florida: Telemedicine technology used to prescribe medication must be able to convey the information necessary to meet the standard of care used for in-person encounters, and physicians are responsible for the quality of this technology. Controlled substances may not be prescribed through telemedicine. Patient relationships can be established through telemedicine alone. Fla. Admin. Code R.64B8-9.014.

New Hampshire: A physician-patient relationship can only be established with an in-person examination, history, diagnosis, and treatment plan. Physicians cannot prescribe medication without such a relationship unless it involves: (a) an admission order for a newly hospitalized patient, (b) a patient of another physician for whom the physician is taking call, (c) a patient having been examined by a physician assistant, nurse practitioner, or other licensed practitioner, or (d) a prescription for a new patient who needs medication on a short-term basis prior to the first scheduled appointment. N.H. Rev. Stat. Ann. § 321:1-1-c.

Idaho: Idaho does not have specific telemedicine laws. However, a physician was disciplined for calling in antibiotics over the phone for a patient who described having flu-like symptoms. This was cited as a breach of the standard of care which requires physicians to examine a patient in-person before prescribing medication. Idaho board disapproves of telemedicine (Idaho Press-Tribune, April 28, 2014).

California: Physicians may prescribe medications based on telemedicine encounters. Cal. Bus. & Prof. Code § 2290.5(a)(6). Before beginning any telemedicine procedures, the patient must verbally consent to the use of telemedicine and this consent must be marked in the patient’s file. Cal. Bus. & Prof. Code § 2290.5(b).

Hawaii: Hawaii specifically permits the issuing of prescriptions based on telemedicine encounters. H.R.S. § 453-1.3.

Texas: Texas law allows physicians to issue prescriptions based on telemedicine encounters. 22 TX A.D.C. § 174.8. Texas law draws a distinction between telemedicine services provided to a patient who is at an established medical site and services provided to a patient who is not at an established medical site. 22 TX A.D.C. § 174.2. An established medical site is defined as a location where there is “a patient site presenter and sufficient technology and medical equipment to allow for an adequate physical evaluation, as appropriate for the patient’s presenting complaint” and does not include a private residence. 22 TX A.D.C. § 174.2. If the patient is at an established medical site a distant-site physician may use telemedicine to establish, diagnose, and treat a patient. 22 TX A.D.C. § 174.6. When the patient is not at an established medical site Texas law requires that the physician and patient have had at least one prior face-to-face encounter before providing treatment, including issuing prescriptions, where face-to-face is defined as either in-person or remotely with the patient at an established medical site. 22 TX A.D.C. § 174.7. Texas law also requires that the physician using telemedicine inform the patient of all the risks and benefits of telemedicine before beginning treatment. 22 TX A.D.C. § 174.5.

Disclaimer

The above information is based on general principals and does not constitute clinical or legal advice. It is aimed at the general practice of prescribing medicine and does not contemplate special circumstances such as drugs related to reproductive health or scheduled substances. The reader should consult an appropriate professional advisor for specific clinical or legal guidance.