DEA Allows Controlled Substance Prescriptions to Be Issued Via Telemedicine

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Recently, the United States Drug Enforcement Administration (DEA) updated its website FAQ to include notice that prescribers are permitted to issue prescriptions for controlled substances based on a telemedicine encounter, in the absence of an in-person medical evaluation. This permission extends for the duration of the COVID-19 public health emergency.

Generally speaking, a telemedicine provider must provide an in-person medical evaluation of a patient prior to prescribing a controlled substance for the patient, absent an exception. This public health emergency is one of those exceptions.

According to the FAQ, for the duration of the public health emergency (as declared by the United States Department of Health and Human Services (HHS) Secretary Alex Azar), prescribers are permitted to write prescriptions for controlled substances based on a telemedicine encounter, instead of the requirement that they be written during in-person medical evaluations.

This declaration allows practitioners to write prescriptions for controlled substances to patients for whom they have not conducted an in-person medical evaluation, as long as:

  • The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of her professional practice.
  • The telemedicine communication is conducted using an audio-visual, real-time, two-way interactive communication system.
  • The practitioner is acting in accordance with applicable federal and state law.

The public health emergency that has been invoked to allow this practice does include a second prong that may limit the application of the exception to “patients located in such areas, and such controlled substances, as the Secretary, with the concurrence of the Attorney General, designates.” This may imply that in the coming weeks, if the country begins to open up in a staggered cascade based on geographic region, perhaps only certain areas of the country will be permitted to use this exception. However, at this time, a public health emergency has been declared nationwide.

Prescribing Controlled Substances with Prior In-Person Evaluation

If the prescribing practitioner has previously conducted an in-person medical evaluation of the patient, the practitioner may issue a prescription for a controlled substance after having communicated with the patient via telemedicine, or any other means, regardless of whether a public health emergency has been declared by the Secretary of Health and Human Services, so long as the prescription is issued for a legitimate medical purpose and the practitioner is acting in the usual course of his/her professional practice. As always, for the prescription to be valid, the practitioner must comply with applicable Federal and State laws.

State Law

It is important to note, however, state barriers to this practice may remain in place.

While some states have been proactive on this front and already relaxed laws prohibiting prescribing controlled substances based on a telemedicine encounter, others have limited the relaxed practice only to patients in certain treatment facilities or with certain conditions.

Before changing telemedicine prescribing practices, practitioners should also review state law restrictions on prescribing controlled substances via telemedicine without a prior in-person examination. In order for the full effect of this exception to be realized, the state governments may need to follow suit and issue a similar directive.

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