Before the pandemic, clinicians prescribing controlled substances over state lines had to have a license in each state where they prescribed telehealth controlled substances. This prohibition has roots in The Ryan Haight Act, which has prohibited health care providers from prescribing controlled substances over state lines since 2009. Ever since, the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 has included prescribing drugs for medication-assisted treatment, such as buprenorphine—without at least one in-person examination of the patient by the prescriber. See TBHI’s article Telehealth Opioids, and Ryan Haight Act Update for more information.
In response to the pandemic and following the Public Health Emergency (PHE) declaration, legislators relaxed many telehealth regulations. The new flexible approach to telehealth and telemedicine legal issues meant that practitioners with a Drug Enforcement (DEA) license now had the legal authority to prescribe controlled substances across state lines. Furthermore, until the end of the PHE, practitioners will generally be allowed to prescribe Schedule II to V telehealth controlled substances without consulting the client in person.
Prescribing Controlled Substances Across State Lines
With the end of the official PHE in sight, Congress has taken steps to extend some of the current legal flexibilities, but this may not come soon enough or extend to all states. Prescribing controlled substances across state lines remains one of the most hotly contended telemedicine legal issues, but an official response is still lacking. Recently reported abuse of telehealth controlled substances, including the excessive online prescription of the ADHD drug, Adderall, may sway legislators’ decisions in some states. See TBHI’s recent article Online Adderall Prescriptions – Taking Action Against the Substance abuse for more information.
The American Telemedicine Association has been working with the American Psychiatric Association as well as 69 other organizations to urge Congress to address the prohibition by allowing properly credentialed professionals to practice telehealth over state lines, including their legal ability to offer telehealth controlled substances. If the current restrictions are not lifted, practitioners will not be allowed to prescribe controlled substances across state lines unless they first meet the patient in person for a consultation. Restrictions for repeat prescriptions will also apply.
End of the PHE & Varying Telehealth Waiver Expirations
Practitioners prescribing controlled substances across state lines have expressed the difficulty of keeping up with changing state laws in an environment where some states have stringent requirements regarding telemedicine legal issues and others do not. The Department of Health and Human Services (HHS) has extended the PHE for 90 days every quarter since the pandemic started. The current 90-day period ends on July 15, 2022, which may get extended again due to recent COVID surges throughout the country. The Consolidated Appropriations Act of 2022 extends the telehealth waivers for 150 days after the PHE expires.
Still, some states, like Florida, have not extended the PHE, meaning many waivers will disappear. As more states follow the lead of those already dropping the state of emergency so, practitioners operating across state lines could face telehealth and telemedicine legal issues. They will have to keep abreast of these legal issues in every state where they prescribe telehealth-controlled substances to avoid breaking the law.
Other Telehealth and Telemedicine Legal Issues
Below is a quick summary of the telemedicine legal issues to consider before offering healthcare or prescribing controlled substances across state lines.
Examine the following to ensure that you are adequately licensed to operate in a particular state
- Which healthcare providers can operate over state lines without a state license?
- Are they licensed to prescribe controlled substances across state lines?
- If supervised, are they supervised according to state regulations?
When it comes to telehealth consultations, providers may want to consider;
- What will the telehealth visits involve? Could a licensed board consider the service a telemedical visit rather than a consultation? Are the differences clearly understood and documented?
- Do planned consultations meet the requirements of state and federal telehealth legislation?
- How are private payor and Medicaid standards applied?
- Does state legislation for prescribing telehealth-controlled substances apply?
Preparing for the Telehealth Waiver Expiration Date
Given the continued uncertainty about the expiration of the PHE or whether Congress will pass laws making some of the telehealth and telemedicine legal issues more flexible. Either way, providers working over state lines must comply with state and federal law.