What One State Means by a Bona Fide Practitioner-Patient Relationship

Answer first: Virginia writes the elements into the statute

Most consumer pages describe a prescriber-patient relationship as though it were a matter of atmosphere. Virginia Code section 54.1-3303 treats it as a set of stated elements, and the sentence that carries them begins with the word shall.

The statute first states the rule. A prescription shall be issued only to persons or animals with whom the practitioner has a bona fide practitioner-patient relationship or veterinarian-client-patient relationship. It then defines that relationship. A bona fide practitioner-patient relationship shall exist if the practitioner has obtained or caused to be obtained a medical or drug history of the patient; provided information to the patient about the benefits and risks of the drug being prescribed; performed or caused to be performed an appropriate examination of the patient, either physically or by the use of instrumentation and diagnostic equipment through which images and medical records may be transmitted electronically; and initiated additional interventions and follow-up care, if necessary, especially if a prescribed drug may have serious side effects.

Four things, and the fourth is the one that gets skipped in summaries. Follow-up care is inside the definition of the relationship, not a courtesy afterward, and the statute singles out drugs that may have serious side effects as the case where it matters most.

The statute also names who may perform the examination. Except in cases involving a medical emergency, the examination required by the third element shall be performed by the practitioner prescribing the controlled substance, a practitioner who practices in the same group as the prescriber, or a consulting practitioner. That closes the gap between an examination performed by anyone and an examination performed by someone connected to the prescriber.

The remote route is a separate list, and it is longer

Virginia does not stop at the general definition. Section 54.1-3303 provides a distinct path for establishing the relationship at a distance, and that path carries its own conditions, all of which the statute says must be met.

A prescriber may establish a bona fide practitioner-patient relationship for the purpose of prescribing Schedule II through VI controlled substances by an examination through face-to-face interactive, two-way, real-time communications services or store-and-forward technologies when all of the listed conditions are met. The statute then lists them: the patient has provided a medical history that is available for review by the prescriber; the prescriber obtains an updated medical history at the time of prescribing; the prescriber makes a diagnosis at the time of prescribing; the prescriber conforms to the standard of care expected of in-person care as appropriate to the patient's age and presenting condition, including when the standard of care requires the use of diagnostic testing and performance of a physical examination, which may be carried out through the use of peripheral devices appropriate to the patient's condition; the prescriber is actively licensed in the Commonwealth and authorized to prescribe; and, if the patient is a member or enrollee of a health plan or carrier, the prescriber has been credentialed by that plan or carrier as a participating provider.

Three more follow. Upon request, the prescriber provides patient records in a timely manner in accordance with the cited Virginia records statute and all other state and federal law. The establishment of the relationship via telemedicine is consistent with the standard of care, and the standard of care does not require an in-person examination for the purpose of diagnosis. And the establishment of the relationship via telemedicine is consistent with federal law and regulations and any waiver of them.

Two of those conditions are worth reading twice. The prescriber must be actively licensed in the Commonwealth — a license somewhere else does not satisfy the sentence. And the standard-of-care condition is written as a gate rather than a permission: the remote route is available only where the standard of care does not require an in-person examination for the purpose of diagnosis, which leaves the answer to clinical judgment about the presenting condition rather than to the convenience of the platform.

The physical-location clause, and what it is protecting

Section 54.1-3303 contains a sentence aimed squarely at the structure of a remote prescribing business, and it is easy to miss because it sits inside a longer clause about telemedicine prescribing.

A practitioner who has established a bona fide practitioner-patient relationship with a patient in accordance with the section may prescribe Schedule II through VI controlled substances to that patient via telemedicine if such prescribing is in compliance with federal requirements for the practice of telemedicine and, in the case of prescribing a Schedule II through V controlled substance, the prescriber maintains a practice at a physical location in the Commonwealth or is able to make appropriate referral of patients to a licensed practitioner located in the Commonwealth in order to ensure an in-person examination of the patient when required by the standard of care.

The condition is written in the alternative. A physical practice location inside Virginia is one way to satisfy it. A referral pathway to a licensed practitioner located inside Virginia is the other. What the statute will not accept for those schedules is a prescriber with neither — no presence and no route to an in-person examination when the standard of care calls for one.

The statute also names three situations the paragraph does not reach: a prescriber providing on-call coverage per an agreement with another prescriber or that prescriber's professional entity or employer; a prescriber consulting with another prescriber regarding a patient's care; and orders of prescribers for hospital outpatients or inpatients.

The purpose test, and the separate relationship the pharmacist has to see

Virginia adds two further requirements that sit on either side of the prescription itself.

The first is a purpose test. A prescription shall only be issued for a medicinal or therapeutic purpose in the usual course of treatment or for authorized research, and a prescription not issued in the usual course of treatment or for authorized research is not a valid prescription. That sentence does not describe a rule of etiquette. It defines validity, which is what the pharmacy downstream is relying on.

The second is a duty on the pharmacist. Section 54.1-3303 states that no prescription shall be filled unless a bona fide practitioner-patient-pharmacist relationship exists, and defines that three-way relationship as existing in cases in which a practitioner prescribes, and a pharmacist dispenses, controlled substances in good faith to a patient for a medicinal or therapeutic purpose within the course of his professional practice.

It then names the action required when the picture is unclear. In cases in which it is not clear to a pharmacist that a bona fide practitioner-patient relationship exists between a prescriber and a patient, a pharmacist shall contact the prescribing practitioner or his agent and verify the identity of the patient and the name and quantity of the drug prescribed. The verb is shall, and the object of the verification is specific: identity, drug name, quantity.

The statute attaches criminal exposure at both ends. A practitioner who prescribes a controlled substance knowing it will be used other than for medicinal or therapeutic purposes is subject to the penalties in the cited criminal statute, and any person knowingly filling an invalid prescription is subject to the same penalties.

Why this reaches a pharmacy that is nowhere near Virginia

A reader might assume that a rule inside Virginia's pharmacy chapter binds only businesses inside Virginia. Virginia's own nonresident pharmacy statute closes that door.

Virginia Code section 54.1-3434.1 requires an out-of-state pharmacy shipping into the Commonwealth to register with the Board, and to disclose to the Board that its pharmacists do not knowingly fill or dispense a prescription for a patient in Virginia in violation of section 54.1-3303, and that it has informed its pharmacists that a pharmacist who dispenses a prescription that he knows or should have known was not written pursuant to a bona fide practitioner-patient relationship is guilty of unlawful distribution of a controlled substance.

That is a disclosure requirement attached to the license, which means the standard in section 54.1-3303 is something an out-of-state mail-order pharmacy has to have affirmatively told its own staff about before it may register to ship into the state.

None of this describes how any particular company operates, and none of it is a statement about whether a given encounter met the definition. It is a description of the standard a Virginia prescription is measured against, written by the state that wrote it. Other states write their own, and at least one of them reaches a materially different answer about whether a real-time interaction is required at all.