Can a doctor call in a prescription for a controlled substance

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.

January 8, 2019

To have a “bona fide” relationship, there must be a treatment or counseling relationship between the prescriber and patient. In addition, the prescriber (1) must review the patient's relevant medical or clinical records and complete a full assessment of the patient's medical history and current medical condition, including a relevant medical evaluation of the patient conducted in person or via telehealth, and (2) must create and maintain records of the patient's condition in accordance with medically accepted standards.

Numerous groups quickly raised concerns and questions about how this requirement would apply in settings common in everyday practice, such as covering for another physician or providing emergency care. The statute’s effective date was delayed to allow the Michigan Department of Licensing and Regulatory Affairs (LARA) time to issue rules dealing with exceptions to bona fide prescriber-patient relationship requirement.

LARA has issued a new rule, with an effective date of January 4, 2019. Now that LARA has promulgated the rule, the statutory requirement has taken effect.

Under the new rule, a physician or other prescriber does not have to perform the tasks required to establish a bona fide prescriber-patient relationship in the following circumstances:

On-call or cross-coverage

A physician, nurse practitioner, or physician assistant may prescribe a controlled substance if another physician or prescriber has already established a bona fide prescriber-patient relationship.  The prescriber providing on-call or cross-coverage must review the patient’s relevant medical or clinical records, medical history, and any change in medical condition. All prescriptions must be documented in the patient’s medical record.

Patients in hospitals, hospices, or nursing care facilities

Controlled substances may be prescribed if a physician or other prescriber is following or modifying the orders of a prescriber who has established a bona fide prescriber-patient relationship with a hospital in-patient, hospice patient, or nursing care facility resident. All prescriptions must be documented in the patient’s medical record.

Controlled substances may also be prescribed as part of the post-admission examination required for a patient admitted to a licensed nursing care facility or a hospice. The physician or other prescriber must review the relevant medical records and history and either follow or modify orders issued by a prior prescriber. All prescriptions must be documented in the patient’s medical record.

Reliance on review by other licensees

A prescriber may prescribe a controlled substance when the review of a patient’s medical records, history, and changed condition has been performed by another licensed health care professional. The prescriber must document any controlled substance prescriptions in the patient’s record.

Medical emergencies

A controlled substance may be prescribed when treating a patient in a medical emergency, which is defined as “a situation that, in the prescriber’s good-faith professional judgment, creates an immediate threat of serious risk to the life or health of the patient for whom the controlled substance prescription is being prescribed.”

While the new rule modifies the bona fide relationship requirement to accommodate common practice settings, there are many questions and details that remain. Nevertheless, physicians and other prescribers should carefully review the new rule and promptly implement its requirements whenever controlled substances are prescribed without personally establishing a bona fide relationship.

If you have questions about the current requirements for prescribing controlled substances, please contact Richard Kraus.

Categories: Licensing, Pharmacy, Physicians

Richard Kraus has 30 years of experience in the area of health care law, with special emphasis on licensing investigations and disciplinary actions. His representation of individual health care professionals as well as hospitals, health systems, long term care facilities and multi-practitioner clinics, provides an understanding of clinical and business realities in health care as well as legal and regulatory requirements.

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Best Lawyers® 2021

Congratulations to the attorneys of the Health Care practice group at Foster Swift Collins & Smith, PC for their inclusion in the Best Lawyers in America 2021 edition. Firm-wide, 44 lawyers were listed. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation and as lawyers are not required or allowed to pay a fee to be listed; inclusion in Best Lawyers is considered a singular honor. Health Care practice group members listed in Best Lawyers are as follows:

• Gilbert M. Frimet, Southfield
• Richard C. Kraus, Lansing
• Jennifer B. Van Regenmorter, Holland

To see the full list of Foster Swift attorneys listed in Best Lawyers 2021, click here.

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