In our July 10, 2017 post regarding telemedicine prescribing, we wrote about the seven exceptions to the Haight Act’s requirement that a provider and patient have an-person visit before a prescriber/practitioner can prescribe a controlled substance for his/her patient. As we concluded in the post, the current exceptions are so narrowly focused that they are of limited utility to telemedicine providers and practitioners.

Notwithstanding the foregoing, it appears that one of the seven exceptions – Exception No. 5 – may be on the cusp of relevance to the telemedicine industry and to those telemedicine practitioners who are also prescribers under state licensure laws. Exception No. 5 allows a practitioner/prescriber to prescribe medication without a prior in-person examination if the “practice of telemedicine is being conducted by a practitioner who has obtained from the Administrator a special registration under section 311(h) of the Act (21 U.S.C. 831(h)).” The exception is currently unusable, however, since the DEA has not created any such registration provisions.

Expansion of Exception 5– or the addition of new exceptions through either regulation or legislation – has the potential of making it possible – under federal law – for prescribing practitioners to obtain a DEA “special registration” and, in turn, prescribe medications to patients whose initial examinations are conducted as “virtual visits” on a telemedicine platform. Notwithstanding the foregoing, once the DEA starts issuing special registrations, there will continue to be a potential impediment to telemedicine prescribing – those state laws (usually state healthcare licensing and scope-of-practice laws) that require initial in-person examinations as precursors to the issuance of prescriptions.

As described in our July 10, 2017 post, states are taking actions such that practitioner/prescribers in such states will have the ability under state laws to take advantage of federal action that will allow the DEA to develop and implement a federal “special registration” process. However, such states are in the minority as compared to those states that require pre-prescribing in-person patient examinations.

Because of the ongoing obstacles created by state laws that prohibit telemedicine prescribing, changes in the Haight Act and/or the Haight Act’s implementing regulations will only be a “first step” on the road to telemedicine prescribing. State legislative and regulatory action on the same subject will be the “second step.” As a result, the telemedicine lobby and other stakeholders will need to continue their efforts to influence lawmaking on both the federal level and the state level if their goals of telemedicine-based prescribing will be realized.

As seems to be a recurring refrain in any discussion regarding healthcare innovation and problem-solving, stay tuned. In fact, we will go one step further by saying stay tuned to the Sheppard Mullin Healthcare Law Blog.