Texas Board of Medical Examiners Adopts Internet Prescribing Policy

By Ronald L. Scott

The ease of obtaining prescription drugs over the Internet and the associated potential for abuse has been well documented. See You Can Get Anything You Want: Internet Pharmacies Overstep Boundaries. Both state and federal regulation have largely focused on regulating the pharmacies involved in such transactions. However, there may be instances in which pharmacies are acting appropriately. For example, a Texas physician could prescribe a drug to a resident of Oklahoma via the Internet, with the prescription to be filled by a pharmacy located in and licensed by the state of Oklahoma.

The Texas Board of Medical Examiners ("Board") has established a policy regarding Internet prescribing. The Board notes that Section 3.08(4) of the Medical Practice Act ("Act") authorizes the Board to discipline a Texas physician for unprofessional conduct that is likely to deceive or defraud the public or injure the public. The Act defines unprofessional or dishonorable conduct to include "prescribing or administering a drug or treatment that is nontherapeutic in nature or nontherapeutic in the manner the drug or treatment is administered or prescribed." The Act further defines unprofessional or dishonorable conduct to include prescribing, administering or dispensing in a manner not consistent with public health and welfare dangerous drugs as defined by Chapter 483, Texas Health & Safety Code. Also, the Act authorizes the Board to discipline a licensed Texas physician for professional failure to practice medicine in an acceptable manner consistent with public health and welfare. Based on its interpretation of the above sections, the Board has determined that it is "unprofessional conduct for a physician to initially prescribe any dangerous drugs or controlled substances without first establishing a proper physician-patient relationship." The Board establishes four minimum criteria to determine whether a proper relationship has been established. A physician must: (1) verify that the person requesting the medication is in fact who he or she claims to be; (2) establish a diagnosis through the use of accepted medical practices such as a patient history, mental status exam, physical examination and appropriate diagnostic and laboratory testing; (3) discuss with the patient the diagnosis and the evidence for it, the risks and benefits of various treatment options; and (4) insure availability of the physician or coverage for the patient for appropriate follow-up care.

Based on the above criteria, the Board has determined that "an online or telephonic evaluation by questionnaire is inadequate."

The Texas Medical Association Board of Councilors serves as the ethical policy making body of the Texas Medical Association. Its opinion with respect to Internet prescribing concludes that although the development of telecommunications technology now makes it possible for physicians to prescribe medications by means of the Internet, such prescription writing may be unethical. See http://www.texmed.org/pmt/lel/legalbocopinions.asp#INTERNET. The opinion acknowledges that in some situations Internet prescribing may be appropriate, e.g., when a prior long-standing physician-patient relationship exists between the physician and the individual requesting the prescription or in emergency or short-term situations. However, the opinion states that where the individual seeking a prescription has never been a patient of the physician, it is "not ethically appropriate for the physician routinely to prescribe the requested medication without the benefit of a hands-on examination."