Telepsychiatry Updates

One of the major issues with telemedicine is that, for the most part, the rules are not clear. The regulators have been slow to share their exact expectations and how those expectations can be met by licensees.  However, until very recently I thought at least these two points were clear:

• Physicians cannot prescribe to individuals based solely on an online questionnaire. This prohibition is found in most, if not all, states’ laws.
• The federal Controlled Substances Act, as amended by the Ryan Haight Act, requires an in-person visit prior to prescribing controlled substances, with very few limited exceptions.

There are two recent events that I want to draw your attention to:

Item #1:  At Least One Physician Is Still Prescribing Based Solely on Online Questionnaires

Last year a CBS News reporter heard that doctors targeting the military personnel by prescribing pain and scar creams over the internet without ever seeing the patients. So the reporter investigated by filled out an online form.  Two weeks later, without ever seeing or talking to a doctor, the reporter received a package from a pharmacy with pain and scar creams prescribed by an Iowa physician.

Lesson #1:  Do no prescribe based only on an online questionnaire!

Then the reporter – and his cameraman – visited the physician’s office and the physician agreed to answer a few questions.

Lesson #2: Do not talk to a TV reporter with the camera running about your inappropriate prescribing activities!

When asked if he was doing anything wrong, the physician reportedly said “he could not disagree with that.”

Lesson #3: Do not admit wrongdoing to a TV reporter with the camera rolling!

Then came the issue of licensure – the reporter ordered the medication from NY. The physician is not licensed in NY and said the service that he works with is only to send him files from states where he’s licensed.

Repeat lessons 1, 2, and 3!

After the report aired on TV, the state medical board began its investigation andfound the physician failed to conform to the minimal standards of acceptable practice by:

• Prescribing medication to multiple patients based solely on an internet request without establishing a physician-patient relationship
• Failing to take a medical history
• And failing to perform a medical interview or physical examination

The physician agreed to pay $10,000, stop practicing telemedicine until he demonstrates to the board that he can safely do so, and complete an ethics program.

Item #2:  Florida Medical Board Now Allows Prescribing Controlled Substances via Telemedicine for Psychiatric Conditions

The Florida Medical Board has amended its telemedicine regulations, which previously prohibited prescribing controlled substances via telemedicine, to now allow prescribing controlled substances for psychiatric conditions via telemedicine.

I was surprised to see this amendment didn’t include language such as “subject to federal law” because the Controlled Substances Act must still must be complied with. As I’ve discussed in a previous post, under the federal law, there must be an in-person evaluation for there to be a valid prescription.  There is an exception for telemedicine, but as specifically defined by the Act.  The definition includes seven specific situations when there is no need for an in-person evaluation, such as when the remote treatment occurs with the patient in a hospital or other facility registered with the DEA and by a prescriber with a DEA license in the patient’s state, or when services are provided remotely by Veterans Health physicians.  The actual definition of telemedicine for purposes of the Controlled Substances Act can be viewed here.

Donna Vanderpool, MBA, JD – Vice President As Vice President of Risk Management, Ms. Vanderpool is responsible for the development and implementation of PRMS’s risk management services for The Psychiatrists’ Program. Ms. Vanderpool has developed expertise in the areas of HIPAA and forensic practice, and has consulted, written and spoken nationally on these and other healthcare law and risk management topics. She most recently contributed to a chapter in Gun Violence and Mental Illness (APPI), authored chapters on telepsychiatry in Mental Health Practice in a Digital World (Springer) and Psychoanalysis Online 2(Karnac). She also has co-edited and contributed chapters to several other clinical textbooks. Prior to joining PRMS in 2000, Ms. Vanderpool practiced criminal defense law, taught business and legal courses, and spent eight years managing a general surgical practice. Ms. Vanderpool received a Bachelor’s degree in Business Administration and Management from James Madison University. She also earned a Master of Business Administration degree and Juris Doctor degree from George Mason University. Follow Donna on LinkedIn.