Key Takeaways
- Telehealth prescribing is currently permitted.
- The Ryan Haight Act still applies
The Act remains part of the federal framework, but current telemedicine flexibilities modify its in-person evaluation requirement.
- State law matters, too.
What Physicians Need to Know About Telehealth Prescribing
Physicians can prescribe some controlled substances through telehealth, but the rules depend on the medication, the type of telehealth encounter, and the laws that apply to the patient and physician. Federal law, DEA regulations, and state-specific requirements all play a role.
Like many telemedicine topics, this area of law is evolving. Current federal telemedicine flexibilities allow DEA-registered practitioners to prescribe many Schedule II-V controlled substances without an in-person medical evaluation. Those flexibilities are currently scheduled to remain in effect through December 31, 2026.
If you prescribe controlled substances through your telehealth practice, stay current on the rules that apply. Our team will provide ongoing updates in our newsletters and blogs as the expiration date approaches.
How the Ryan Haight Act Applies to Telehealth Prescribing
The Ryan Haight Online Pharmacy Consumer Protection Act was enacted in 2008 to address the online prescribing and dispensing of controlled substances without appropriate medical oversight. It generally requires an in-person medical evaluation before a practitioner prescribes a controlled substance through the internet.
The Ryan Haight Act remains in effect. Temporary telemedicine flexibilities change how its in-person evaluation requirement applies to qualifying telehealth encounters.
Under the current framework, a DEA-registered practitioner can, in some circumstances, prescribe Schedule II-V controlled substances through an audio-video telemedicine encounter without first conducting an in-person evaluation.
The current flexibility is temporary and is scheduled to remain in effect through December 31, 2026, unless the rules are extended or replaced by permanent regulations.
What Federal Rules Apply to Controlled Substance Prescribing Through Telehealth?
The current federal telemedicine rules generally allow DEA-registered practitioners to prescribe Schedule II-V controlled substances through qualifying audio-video telehealth. Audio-only prescribing is subject to narrower rules.
The current federal flexibility permits audio-only prescribing of certain Schedule III-V narcotic medications that the FDA has approved for the treatment of opioid use disorder, subject to other applicable requirements.
The temporary telemedicine rules address when an in-person evaluation is required. They do not lower the standard for evaluating a patient or determining whether a controlled substance is appropriate.
Other federal requirements also continue to apply. Physicians must be authorized to prescribe controlled substances, comply with applicable DEA requirements, and issue prescriptions for a legitimate medical purpose in the usual course of professional practice.
State Requirements Still Apply to Telehealth Prescribing
Federal law is only part of the analysis. Physicians must also comply with the law of the state where the patient is located during the telehealth encounter.
State requirements may address:
- Medical licensure and telehealth authorization
- Establishment of a physician-patient relationship
- In-person examination requirements
- Controlled substance prescribing
- Prescription drug monitoring program (PDMP) checks
- Electronic prescribing
- Telehealth consent and documentation
A state may impose requirements that are more restrictive than federal law. A prescription permitted under the federal telemedicine flexibilities may therefore still violate state law.
Physicians treating patients across state lines should take particular care. A physician licensed and DEA-registered in one state cannot assume that those credentials automatically authorize controlled substance prescribing to a patient located in another state.
Practices should confirm the patient’s physical location as part of the telehealth workflow and determine which state requirements apply before prescribing.
Jackson LLP can review your telehealth practice structure and the state-specific requirements that apply to your practice. Contact us today to book a free consultation.
Does a Patient Need an In-Person Visit Before Receiving a Controlled Substance?
Not necessarily. Under the current federal telemedicine flexibilities, a physician generally does not need to conduct an in-person evaluation before prescribing a Schedule II-V controlled substance through a qualifying audio-video encounter.
But federal law, state law, and clinical judgment are separate considerations.
A state may require an in-person examination even when federal law does not. A physician may also determine that an in-person examination, laboratory testing, drug screening, or another evaluation is medically appropriate.
The ability to prescribe remotely is therefore not a substitute for appropriate clinical judgment. Physicians should determine whether telehealth provides enough information to evaluate the patient and safely manage the treatment.
What Should Physicians Document When Prescribing Through Telehealth?
Physicians should document the information supporting the prescribing decision and demonstrating compliance with applicable requirements.
Depending on the circumstances, documentation should address:
- The patient’s physical location during the encounter
- The clinical evaluation, diagnosis, and treatment rationale
- Any required PDMP review or other prescribing checks
- The medication, treatment plan, monitoring, and follow-up
Practices should also review their telehealth informed consent procedures and documentation requirements. Telehealth may limit a physician’s ability to evaluate a patient, and the practice should have a process for determining when an in-person visit is necessary.
Building a Compliant Telehealth Prescribing Process
Practices should build controlled substance compliance policies into the telehealth workflow rather than addressing them only when a prescription is requested. Those policies should include procedures to confirm patient location, verify applicable licensure and prescribing authority, identify state-specific requirements, document clinical decisions, and monitor changes to federal telemedicine rules.
Practices that maintain controlled substances on site must also address separate DEA requirements for storage and security.
Let Our Team Help With Your Telehealth Controlled Substances Prescribing Policies
The current federal rules give physicians more flexibility to prescribe controlled substances through telehealth, but careful compliance remains necessary. Jackson LLP works with physicians and healthcare practices on telehealth, prescribing, and regulatory compliance issues.
We can create controlled substances SOPs for your practice, discuss your current compliance plan, or advise you on expanding your telehealth practice into other states. Book your complimentary 15-minute phone consultation today.
Free Attorney Consultation
Free Attorney Consultation
Frequently Asked Questions About Telehealth Prescribing
Can physicians prescribe controlled substances through telehealth?
Yes. Under current federal telemedicine flexibilities, DEA-registered practitioners may prescribe Schedule II-V controlled substances through qualifying audio-video telehealth encounters without first conducting an in-person medical evaluation. State law may impose additional requirements.
Does the Ryan Haight Act prohibit prescribing controlled substances through telehealth?
No. The Ryan Haight Act established an in-person evaluation requirement for certain internet prescribing, but federal telemedicine rules currently allow qualifying practitioners to prescribe Schedule II-V controlled substances through telehealth without a prior in-person evaluation.
Does a patient have to see a physician in person before receiving a controlled substance?
Not necessarily. The current federal telemedicine flexibilities do not require a prior in-person evaluation for qualifying Schedule II-V prescriptions. However, state law or the physician’s clinical judgment may require an in-person visit.
Can a physician prescribe a controlled substance to a patient in another state?
Potentially, but the physician must comply with the laws applicable where the patient is located. This may include state medical licensure, telehealth, controlled substance, PDMP, and electronic prescribing requirements.
Can controlled substances be prescribed through an audio-only telehealth visit?
Only in limited circumstances. The current federal flexibilities permit certain Schedule III-V narcotic medications approved for opioid use disorder treatment to be prescribed through audio-only telemedicine, subject to applicable requirements.
Will the rules for prescribing controlled substances through telehealth change?
They may. The current federal telemedicine flexibilities are temporary and are scheduled to remain in effect through December 31, 2026. DEA and HHS may establish a different permanent framework after that date.
