Giving Telemedicine More Room To Breathe: Recent And Pending State And Federal Actions In The World Of Online Prescribing

On October 18, 2008, the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 (the "Haight Act") came into law as the federal government's first attempt to address the public health risks associated with online pharmacies – such risks including the dispensing of drugs (including addictive drugs to be used recreationally) without a valid prescription, and the dispensing of adulterated drugs, counterfeit drugs, and/or expired drugs, all of which could result in significant harm to individuals who may have been looking for an easy way to obtain prescribed medications at a lower price.

The Haight Act's weapons of choice against risks of questionable online pharmacy practices include (i) a requirement that online pharmacies can only dispense medications after receipt of a written prescription from the ordering patient's treating physician; and (ii) a requirement that prescriptions can only be written by a physician after an in-person patient examination.

Although the Haight Act, as the first federal online pharmacy law, was generally considered a good first step to reign in dangerous practices associated with online pharmacies, changes in healthcare policy and priorities, and the advancement of healthcare technology since 2008, have resulted in a growing realization that the online prescribing hurdles constructed by the Haight Act in 2008 require much-needed adjustment.

The Haight Act: An Origin Story

The dangers of Internet pharmacies were making headlines well before the Haight Act was introduced in the Senate on March 23, 2007. As noted above, the dangerous practices of Internet pharmacies that have grabbed, and continue to grab, the public's attention include the easy online availability of prescription drugs, including opioids, with no prescriptions required. To address the prescription issue without making it harder for consumers to access drugs, some online pharmacies made customers complete online health questionnaires to be reviewed by a physician or other medical practitioner as part of the drug ordering process. The questionnaires were intended to be a quick, efficient, and customer-friendly substitute for an in-person medical examination by a treating physician who, at the end of the exam, still might not prescribe medication.

In practice, the questionnaires were no substitute for an actual medical exam and prescription. Completed questionnaires were usually approved without any communication between prescriber and customer and there certainly was no interaction that remotely resembled the provision of...