Doxy.me Insights: Can Doctors Write Prescriptions Across State Lines?

The healthcare market continues to demand more convenient ways to receive medical care, including medication prescriptions. One of patients' most common questions is whether doctors can write prescriptions across state lines.?

The short answer is yes, you can prescribe various medications across state lines—at least temporarily.?

Prior to the pandemic, the federal law was clear - a provider needed to be registered by the DEA in each state the patient resided in for controlled substance prescriptions. However, this changed with the need to adapt to the challenges of providing safe and effective virtual care during COVID-19. The Drug Enforcement Agency (DEA) and the Department of Health and Human Services (HHS) recently announced that they have extended all telehealth flexibilities through 2024, allowing clinicians to continue prescribing controlled medications to their patients virtually while the agency reviews and makes permanent changes to its policies.?

However, there are some caveats to be aware of, including specific drugs you can prescribe under certain circumstances and those you can’t prescribe only through telemedicine. In some cases, prescribing drugs across state lines may violate federal and state laws. This starts to become more challenging when you’re dealing with transient patient groups, such as college students or retirees who have a second home and need to spend some time away from their primary doctor.

As prescribing laws continue to shape medicine, including telemedicine, it’s important to follow applicable rules and regulations. Two issues we’ll discuss in detail include:?

• Prescribing controlled substances via telemedicine. After strong urging from the public, including telemedicine providers, the DEA and HHS have again extended the temporary rules for prescribing controlled medications via telehealth, which were set in place during the COVID-19 public health emergency (PHE). This temporary rule ensures our patients will continue to have uninterrupted access to their needed medications for the interim.???
• State-specific prescribing rules. Different states still have different rules about what you can and can’t prescribe via telemedicine — and not just for controlled medications. For example, in some states, erectile dysfunction medication and dermatology products cannot be prescribed online. So, it’s critically important to know the laws in both the states where your patients live and where you practice and the originating and distant site state laws before prescribing medication.?

New Rule: Telehealth Providers May Continue Prescribing Controlled Substances Until the End of Next Year?

In March 2020, shortly after the HHS Secretary declared the pandemic a PHE, clinicians received some flexibility when prescribing controlled medications to patients who needed them via telemedicine. To prevent lapses in treatment, clinicians no longer had to follow the Ryan Haight Act of 2008, which requires patients to have at least one in-person evaluation before receiving a prescription.?

The exception was later extended temporarily and scheduled to expire on November 11, 2023. However, public outcry ensued, including a record number of comments from the Department of Veterans Affairs, patients, and physicians and some persuasive demonstrations presented during the two-day Telemedicine Listening Sessions held on Sep. 2023 in Washington, D.C.?

This prompted the DEA and HHS to extend the rule once again. This second temporary rule, published in the Federal Register, will expire on December 31, 2024.??

?The rule means:

• Patients get the medicine they need. All DEA-authorized practitioners who follow state and federal laws can use telemedicine to prescribe schedule II–V controlled substances, including FDA-approved schedule III–V narcotic controlled medications for patients with opioid use disorder who need the medication to manage withdrawal symptoms (medication-assisted treatment).
• Providers have more time. The second temporary rule also means telemedicine providers and health systems will have ample time to comply with the new standards. It safeguards the process DEA is developing, which it says will be in place by the fall of 2024.

The DEA and HHS stated: “Because this is an extension of limited duration of flexibilities that existed during the COVID-19 PHE, and because there are legitimate concerns regarding patient access to care following the expiration of the practitioner-patient relationship aspect of the First Temporary Rule on November 11, 2023, DEA and HHS have determined that this Second Temporary Rule is consistent with effective controls against diversion and otherwise consistent with the public health and safety.”?

This is good news for clinicians and patients, but the final rule must happen now, not a year from now. We know virtual prescribing works—it’s time to remove the barriers.?

“While the extensions to the post-pandemic flexibilities are a positive step in the right direction, the key here is to avoid further delays. The DEA needs to make concrete permanent flexibilities so our healthcare delivery system doesn’t regress. Many healthcare systems are looking to invest in virtual care, but if we wait longer, this may not always be the case.”

We agree. But until then, if you plan to write prescriptions across state lines, comply with federal and state laws, which can change at any time, so it’s advisable to seek an expert legal consultant.?

Pay Attention to State Laws and Regulations

Many states have enacted laws that permanently allow out-of-state physicians to practice telehealth in their state, provided they meet the state’s requirements, according to Telehealth.HHS.gov. Some states allow out-of-state physicians and other providers to practice telehealth if licensed in another state, while others require out-of-state telehealth license holders to pass an exam.?

What about individual state prescribing policies??

States differ in their regulations on the use of technology and prescribing. Most states do not consider using only an online questionnaire sufficient to establish a patient-provider relationship, which is required to prescribe in most states. Some states also require a physical exam before a prescription can be written, but not all states require an in-person exam, and some specifically allow telehealth to be used for the exam. Yes, it can be tricky.?

Here are some of the key questions that you should ask for prescribing at the state level:?

• Is there a standard of care provided? The standard of care is the litmus test of providers to meet their professional obligation as healthcare professionals in the provision of care. The failure of this standard amounts to being derelict on the duty they took an oath to uphold, which in itself may carry serious consequences.?
• Is a pre-existing provider-patient relationship required? Half of the states prohibit prescribing without first establishing a provider-patient relationship and/or conducting a physical examination. In this context, pre-existing means establishing a relationship prior to the telehealth encounter.
• How is a provider-patient relationship established? The common areas of focus are 1). The patient and provider must verify their identity and relevant credentials 2). Consent to treat the patient through telehealth must be taken 3). and, in some States, must include an evaluation or at least a review of the patient’s medical history (the last point being highly variable).
• Is a physical examination required, and what are the requirements? In States that require an examination, most say that the examination should include some combination of: 1). A medical history, 2). a diagnosis, 3). a therapeutic plan, and/or 4). ensure the availability of follow-up care
• Can a physical examination be conducted via telehealth??

How Changes to Telemedicine Prescribing Will Affect You

• The temporary flexibility grants a one-year grace period from in-person visit requirements. According to the DEA, the interim rule aims to ensure uninterrupted patient care and prevent any backlogs in the healthcare system.?
• In turn, the existing rules of the Ryan Haight Act will continue to apply if you (or another referring provider) have conducted at least one in-person examination or meet the criteria in the exceptions outlined earlier. After the first in-person visit to prescribe controlled substances, the legislation doesn’t mandate any more in-person visits.
• One important thing to remember, though, is that you need to comply with both state and federal laws. That means you may still be required to adhere to the most restrictive rules. For instance, while federal law may not require additional in-person visits, some states might have their own rules.?

Hopefully, this article clears up some questions you may have on prescribing laws. To learn more about the specific laws and regulations in the states you wish to prescribe, CCHP offers a detailed, state-by-state list of rules you’ll need to follow.