Many prescription medications are “controlled substances.” Physicians who prescribe controlled substances for patients in Florida must adhere to strict legal requirements as to how controlled substances can be prescribed. Typically, a physician must have an in-person consultation with the patient in order for the physician to prescribe controlled substances. The Drug Enforcement Administration (DEA) recently proposed a new rule that could ease some of the burdens imposed upon physicians who prescribe controlled substances.
“Telehealth” or “telemedicine” is an expanding and evolving method of interaction between physicians and patients—especially since the onset of the Covid pandemic. “Telehealth” or “telemedicine” generally refers to a videoconference between a physician and a patient in lieu of a face-to-face office visit.
On March 1, 2023, the DEA issued a proposed rule. The proposed rule is titled “Telemedicine Prescribing of Controlled Substances When the Practitioner and the Patient Have Not Had a Prior In-Person Medical Evaluation.”
Under this proposed rule, after a patient and a practitioner have had an initial in-person medical evaluation, that practitioner may then use telehealth to prescribe that patient any prescription for a controlled medication that the practitioner deems medically necessary. This proposed rule would apply only in limited circumstances when the prescribing practitioner wishes to prescribe controlled medications via the practice of telemedicine and has not otherwise conducted an in-person medical evaluation prior to the issuance of the prescription. This means that once a physician has conducted an initial in-person evaluation, the physician may prescribe controlled substances to the patient by using telehealth procedures for subsequent visits.
Considering this rule, the DEA recognizes the benefits of increased access to telemedicine. The DEA found that telemedicine has the potential to help address accessibility issues and improve access to care, including patients needing specialty care and for patients in remote and other underserved areas. More than 75 percent of all counties in the U.S. are classified as mental health shortage areas, and 50 percent do not have any mental health professionals. The greater range of telemedicine practice that would be possible under this proposed rule would allow practitioners to reach a greater number of patients, improving healthcare outcomes and reducing costs for patients throughout the country.
There is increased law scrutiny by law enforcement on physicians who prescribe controlled substances. Therefore, physicians must ensure compliance with controlled substance prescription rules to avoid unwanted scrutiny.
Beggs & Lane regularly counsels healthcare providers with some of the most challenging legal matters. This includes advising physicians and other healthcare professionals on how to stay in compliance with evolving healthcare regulations, providing medical malpractice counsel, and representing those who are under investigation by federal and state authorities.
Beggs & Lane’s White Collar Criminal Defense and Internal Investigations Group is led by former First Assistant United States Attorney David McGee. The Group includes Gregory R. Miller, a former United States Attorney for the Northern District of Florida; Charles T. Wiggins, a Board-Certified Civil Trial Lawyer and former criminal prosecutor with the Office of the State Attorney, First Judicial Circuit of Florida; and Matthew P. Massey, a former Assistant United States Attorney with the U.S. Attorney’s Office for the District of Columbia.