Prescribing. Now this is also another area where you have to look at federal law and state law and there's very clear areas or lanes that the two operated. Federal law really is prescribing of controlled substances when you're talking about telehealth and how that's used to prescribe. You'll hear the term Ryan Haight Act a lot of times when you're talking about telehealth prescribing and controlled substances. That's because that's the name of the act in which that particular section regarding telehealth was in. It becomes a shorthand for a lot of folks when they're referring to this particular topic saying, oh, the Ryan Haight Act. What it had in there was it allowed telehealth to be used to prescribe a controlled substance if the telehealth provider had never seen the patient before in-person. They've never examined them physically themselves. They've only seen them through telehealth. They can use that telehealth visit to prescribe a controlled substance in these very limited circumstances. There are very specific narrow exceptions which are listed here. The patient has to be treated and physically located in the DEA-registered hospital or clinic or with a DEA-registered practitioner during the time of telehealth visit or the telehealth provider is a contractor with the Veteran Affairs or Indian Health Services or during public health emergency. Then there was another option, if the telehealth provider is on a DEA Telehealth Registry. However, that registry as of 2021 has not been created yet. But presumably, the idea is that this registry would be created. If you were a telehealth provider, you would apply to get on that registry, if you got on there, you would presumably be a good actor and everything like that, so you could go ahead and prescribe it yourself controlled substance. But as you can see, it's very limited in how you can use telehealth to prescribe those controlled substances and this is in federal law. It's not as it's an administrative regulation or anything, it's through federal law that you have to abide by. This is also a very good example of where federal law controls as opposed to state law, because this is a specific area that the feds have said we are going to be in control of this particular issue and that's prescribing controlled substances and when you're using telehealth to do that. However, there's a lot of other things that providers prescribe that aren't controlled substances. What happens there? Well, that's in the domain of state law. Basically state laws control everything else about prescribing. Each state laws differ in how they approach it and what they say about it. But one of the most important things where they approach it in regards to telehealth is in the establishment of the patient-provider relationship. You need that relationship established before you can prescribe anything. How a lot of states take their first step to approaching the prescribing question is saying like, when can you establish a patient-provider relationship when you're using telehealth? Most of the states have something on their books where they said like, well, you can use at least live video to do that. There's certain varying requirements such as, providers assured that they can do this via live video or they can get all the information that they need in order to make sure it was an effective like interaction, etc. Then you can establish that patient-provider relationship, which is your first step before prescribing. Again, states defer to federal law on controlled substances, but everything else stay pretty much said as long as he establishes patient-provider relationship, they may have other more specific prescribing rules such as they may limit the use of telehealth prescribing certain types of medications such as abortion-inducing medications. Those types of rules might be on their books too. One other thing to know, I said that a lot of states are using telehealth to establish a patient-provider relationship and they say live video, that is predominantly the modality that they said to establish a relationship. There's usually, a lot of states have explicit exclusions to saying you can't do it asynchronously or can't use just a questionnaire to establish a relationship. You need to have that live synchronous interaction between the two parties to establish that relationship. The last thing that I want to cover as far as where federal and state laws might overlap or how they interact with each other, another issue is areas around privacy and health information. HIPAA is not the only thing you need to be aware of when you're talking about looking at privacy and protecting health information. There are other things that you should consider as well too. On the federal level, it's HIPAA. If you're using telehealth, HIPAA still applies, but there is nothing in HIPAA currently as of 2021 that's telehealth specific. While you still have to follow HIPAA, you might need to take a different approach in how you meet those HIPAA requirements. An example of that might be who you have a business associate agreement with. Underneath HIPAA, for anybody who might see that personal health information, that protected information, you need to have to make sure you have a business associate agreement in place. Well, if you're using telehealth, who you have that business associate agreement may be different parties, then they would have been had you delivered the services in-person. That's what I mean by you need to abide by HIPAA, but you might need to think about it slightly differently when you're using telehealth. Keep in mind, this is one of those areas where I was saying that, where you have federal and state law on the same topic, what controls whilst they're in conflict whichever federal law trumps. That's where you saw on controlled substances, federal law will trump because they explicitly said that we're prescribing controlled substances, but where maybe a state sets a higher level of expectations, then the state would trump it. That's where you see we're protecting health information and privacy. HIPAA is your floor. That's like the minimum you have to meet because there are some states that actually have a higher level of expectation and requirement and protection that you need to do. Be aware if you are operating in multiple states that these two can also vary unlike what they may require, you may operate in two different states and one state may have very stringent or very detailed laws and regulations regarding protection of health information. But then this other state that you are also operating in, they may not have those same requirements. They may, let just say, stick with HIPAA standard. Keep aware and be aware that states may have different levels of what they require and that they can vary also from state to state. Usually if the states have something that's a little bit stronger than HIPAA, that's really the standard you need to meet. HIPAA is, think of that as your base level, the minimum that you need to meet right now. Because there are states that do have like higher levels of requirements and expectations of what you're supposed to do to protect health information. I hope this is in HIPAA. I hope you now have a clear understanding of the roles that federal and state policies play and how they interact and maybe if there's a conflict, what trumps and what controls. We went over very quickly reimbursement, prescribing, and privacy in health information. These are all very complicated issues, so they do require deeper dive there because they do vary from jurisdiction to jurisdiction or different elements and features to them. But just wanted to give you a high level understanding of how the federal and state roles play in these particular issue areas. I hope to see you again soon. Have a great day. Thank you for listening to this talk.
