Online Prescriptions: Innovative or Illegal?

Today’s consumers love the option to obtain prescriptions online, with no office visit required. It’s a slick, disruptive business model, but is it actually legal?

Online prescription businesses, or businesses that allow patients to obtain prescriptions through an online interaction with a medical provider, have become increasingly popular. It is easy to see why: a patient can quickly and easily obtain a prescription using services like Lemonaid, Roman, Hers, and Nurx — no office visit required. 

In the age of on-demand services like Amazon and Uber, should patients expect the same instant gratification from their medical providers? Online prescription services offer a simple and convenient way for patients to receive care, but there are several concerns associated with what the New York Times describes as “Restaurant-Menu Medicine.” 

If you’re a physician or other practitioner with prescriptive authority, you may wonder about the implications of choosing to prescribe online. Here, we address your legal questions regarding the patient-practitioner relationship, informed consent, corporate practice of medicine, and multi-state licensure requirements. 

What does the law currently say about online prescriptions?

One challenge for many online prescription services and those prescribing medicine online is the gray areas in telemedicine law. Telemedicine, the remote diagnosis and treatment of patients using telecommunication technology, is regulated at both the state and national levels.

In 2008, Congress passed the Ryan Haight Online Pharmacy Consumer Protection Act to fight online pharmacies’ improper sale of controlled substances. The Ryan Haight Act requires physicians to conduct at least one in-person exam prior to prescribing a controlled substance with some limited exceptions.

Many states take an even more restrictive approach to telemedicine and online prescriptions. Some state medical boards require an in-person physical examination before writing a prescription online. Others require a patient-provider relationship to be established prior to providing any remote or online care. This is why many online prescription businesses do not operate nationwide.

Can you establish a patient-practitioner relationship online?

There’s no one clear answer as to whether a patient-practitioner relationship can be established virtually or whether an in-person examination is required for diagnosis and prescription. Prescribing medication without any patient contact has landed some physicians in hot water. Determining the appropriate level of patient contact is less straightforward and varies from state to state.

Some states have clear prohibitions against providing online prescriptions without an in-person exam. Delaware, for example, requires that practitioners have a “patient-practitioner relationship” in order to write a prescription, which in most cases requires at least one in-person medical evaluation of the patient. 

Other states have more relaxed rules regarding telemedicine and online prescriptions. However, even in many less restrictive states, simply reviewing an incoming patient’s answers on a questionnaire cannot establish a practitioner-patient relationship. Some experts argue that even where state law does not explicitly prohibit prescribing medication based on review of a patient questionnaire, it still doesn’t meet basic standards of competency for diagnosis and prescription.

Can you provide informed consent with online prescription services?

Most states apply the same standard of care requirements regardless of whether a patient is being treated in person or remotely, including requirements relating to informed consent. For example, the Illinois Telehealth Act requires practitioners to treat online medical services in a manner “consistent with the standards of care for in-person services.” This means that online prescribers must inform patients about the risks and benefits of a given course of treatment and discuss reasonable alternative treatments. Purely questionnaire-based interactions may pose unique concerns regarding informed consent, particularly because patient-provider communication is not done in real time. 

Do online prescription services violate the corporate practice of medicine doctrine?

The corporate practice of medicine doctrine seeks to prevent the commercialization of medicine and to preserve practitioners’ medical judgment. Many states prohibit corporations from paying practitioners for the practice of medicine or otherwise unduly influencing practitioners’ medical judgment. Some states, such as California have aggressive restrictions against the corporate practice of medicine, prohibiting most contractual arrangements to provide medical services between physicians and corporations.

Telemedicine systems, like online prescription services, may also be more vulnerable to fraud and abuse. As a result, the Health Sector Council recommends that telemedicine programs proactively seek out and manage weaknesses and risks associated with using telemedicine systems.

Do you need to be licensed in multiple states to prescribe medicine online?

As online prescription businesses expand, practicing across state borders can pose a challenge for practitioners. Depending on state law, online prescribers could find themselves practicing medicine without a license if a patient is located in a state where the practitioner does not hold a license. For an overview of telemedicine laws in every state, including requirements regarding out of state practice, see the Center for Connected Health Policy’s interactive map.

What does this mean for practitioners?

If you’re weighing the prospect of prescribing online, you’ll need to consider the compliance and legal issues on a state-by-state basis in order to avoid breaking any laws and to ensure that your patients receive an adequate standard of care. The range of issues may seem overwhelming, but an experienced healthcare attorney can ensure that your goals align with your legal obligations.

Jackson LLP can help. Let one of our attorneys walk you through any questions you have regarding online prescription services. To schedule a complimentary phone consultation with a Jackson LLP attorney, call our office at (312) 985-6484 or click the button below.

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