Telemedicine is booming. Telemedicine (sometimes referred to as Telehealth) is the use of telecommunication and information technologies to provide clinical health care at a distance. Telemedicine is developing over a growing variety of applications and services, including two-way video, email, and texting. Skype calling your doctor to discuss and show them your symptoms is just one example of telemedicine.
Telemedicine gives patients access to doctors and their medical advice without the burden of travel. It also can connect specialists with patients around the country (or even the world) where such connections might otherwise be difficult or even impossible.
State policies on telemedicine vary greatly. The various state rules on telemedicine are created by state medical boards, who are tasked with regulating medical licenses. Doctors must follow the regulations and guidelines of their state medical boards.
Given the foregoing, it begs the question whether medical marijuana can take advantage of this modern advancement.
Can Doctors Recommend Medical Cannabis Using Telemedicine? Many states require a healthcare provider and his or her medical cannabis patient have a pre-existing, bonafide relationship. Most states also require an in-person examination of the patient before any recommendation of medical marijuana, in addition to various requirements regarding follow-up care. Still, in some states it is not clear whether this doctor-patient relationship may be established virtually.
On the other hand, some states explicitly prohibit physicians from recommending medical cannabis via telemedicine. Colorado’s Medical Board took this approach last August. Illinois also directly prohibits the practice. And Washington requires healthcare providers to complete “an in-person physical examination of the patient” to issue a medical cannabis authorization, rendering telemedicine a moot point. Some states that allow medical cannabis have not directly addressed the issue of recommending cannabis through telemedicine, leaving doctors with little guidance on whether they will face consequences for engaging in this practice.
California Leading the Way. In October 2014, the Medical Board of California stated the following regarding cannabis telemedicine:
The initial examination for the condition for which marijuana is being recommended must be an appropriate prior examination and meet the standard of care. Telehealth, in compliance with Business and Professions Code section 2290.5, is a tool in the practice of medicine and does not change the standard of care.
This is significant because California is the only state whose medical board has explicitly set forth an affirmatively favorable policy regarding telemedicine and medical cannabis. This clarity has allowed California doctors to recommend medical cannabis via telemedicine without fear of losing their license to practice medicine.
However, California recently overhauled its medical cannabis laws and those new laws may impact cannabis telemedicine in California. Senate Bill 643 (SB 643), which goes into effect on January 1, 2016, sets forth standards for licensed medical physicians who recommend cannabis for medical use, including the fact that:
No person or entity may prescribe, dispense, or furnish, or cause to be prescribed, dispensed, or furnished, dangerous drugs or dangerous devices,  on the Internet for delivery to any person in this state, without an appropriate prior examination and medical indication[.]
Though this new law can be read to prohibit doctors from recommending cannabis through telemedicine channels, it also can be read to allow for recommendations via telemedicine if California continues to consider a doctor-patient examination through telemedicine a legitimate “appropriate prior examination.” California agencies will process rules and regulations related to SB 643 probably until January 2018. During this time, I expect California’s Medical Board to provide further guidance on telemedicine, and I expect that guidance will ultimately favor telemedicine and cannabis especially under California’s imminent hardcore MMJ regulatory regime.
So, What’s Next? We’ll likely see more states grapple with telemedicine as they consider medical cannabis legalization. This issue is especially relevant in states with geographically spread out populations, such as Alaska. We will keep you updated.
By Daniel Shortt on Canna Law Blog, November 20, 2015