Prescribing Controlled Substances Through Telehealth: How COVID-19 Is Changing the Game

The practice of medicine through telehealth has always been heavily restrictive. A recent statement by the DEA expands what physicians may do—but brings into question what will happen when the COVID-19 pandemic subsides.

Medical professional holding medicine bottle and pen.

Practitioners have long been plagued by legal restrictions on prescribing controlled substances via telehealth. The federal government has considered the risk of these drugs to outweigh the potential benefits of prescribing them without an in-person patient visit. However, as COVID-19 triggers a booming telehealth industry, the government finally looks poised to give physicians more discretion and leeway in their prescribing practices. Where does telehealth now stand? And where is it going? 

The History of Online Prescribing

It has been over ten years since the Ryan Haight Online Pharmacy Consumer Protection Act was passed back in 2008. The act was created to prevent online pharmacies from the improper sale of controlled substances by requiring physicians to have at least one in-person exam prior to prescribing (with limited exceptions). 

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Congress then tasked the Drug Enforcement Administration (DEA) with providing a special registration process for physicians who would be allowed to prescribe for patients whom they did not meet in-person. However, the DEA failed to provide any guidelines for physicians, so Congress stepped in again in 2018. Congress mandated that the DEA create these requirements by the end of October 2019. Once again, the DEA failed to take any steps towards expanding the Ryan Haight Act.

The DEA stated that while it missed its October deadline, it would be able to provide guidelines by December. But the DEA failed to even meet its self-imposed deadline. Again, Congress’s request for a physician exception went unanswered. 

The Coronavirus Comes into Play

As the COVID-19 pandemic continues to escalate, the use of telehealth has increased with it, as has the law’s permissiveness. The federal government appears to be expanding physicians’ scope of practice in telehealth every day. In response to the state of emergency declared on January 31, 2020, the DEA stated it will allow the prescription of opioids and other controlled substances over telehealth. In the DEA’s view, the emergency warrants an exception to the general rule against online prescription. Note that this was not a permanent change in the rule itself.

What Do Physicians Have to Do?

In order to prescribe controlled substances without an in-person visit, physicians must meet certain conditions. The DEA states that these conditions include

“The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of his/her professional practice”

Practical takeaway: Just because we’re in the midst of a pandemic doesn’t mean that every doctor has a broader scope of professional practice. It’s assumed that the physicians taking advantage of this change will have an established practice of prescribing controlled substances in the “usual course” of their work — ie, during in-person visits. Physicians who do not typically prescribe controlled substances in their day-to-day practice should think carefully before beginning the practice now via telehealth, as they remain accountable to their professional standard of care and scope of practice.

“The telemedicine communication is conducted using an audio-visual, real-time, two-way interactive communication system”

Practical takeaway: Phone-only visits aren’t sufficient. Physicians need to use video technology.

“The practitioner is acting in accordance with applicable Federal and State law.”

Practical takeaway: If the physician’s state is more restrictive, the federal laws often only establish the floor of the permitted activity. For example, if a state’s medical practice act says physicians can only prescribe controlled substances via in-person visits, the state will also need to suspend its own laws/regulations for the physician to take advantage of the DEA’s temporary permissiveness on this practice.

What does this mean for after COVID-19?

You may be wondering how telehealth will change once this acute threat of COVID-19 has passed and the panic has calmed. Unfortunately, the DEA also said in its statement that this is a temporary allowance, only for the duration of the public emergency. 

We do hope that the emergency’s demonstration of the vital, clinically-valuable role of telehealth will prompt the DEA to establish permanent rules to allow physicians to prescribe controlled substances using telehealth, and we anticipate that medical trade organizations will advocate for these changes on behalf of physicians.

The COVID-19 pandemic is a dynamic and evolving public health emergency. The laws and situation are fluid, and this article may not reflect the most current situation.

This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader and should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.

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