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Prescribing Controlled Substances via Telehealth under Florida and Federal Law

controlled substances via telehealthBy: Susan St. John

Pursuant to Section 456.44(3)(a), Florida Statutes, and Rule 64B-9.013(3)(a), Florida Administrative Code, a practitioner must evaluate a patient by taking a complete medical history and performing a physical examination prior to prescribing a controlled substance to a patient. The aforementioned statute and rule do not specifically rule out a patient evaluation taking place via a telemedicine visit. However, under current Florida law, only controlled substances used to treat psychiatric disorders may be prescribed using telemedicine technology, that is audio and video technology commonly referred to as telepsychiatry. Specifically, Rule 64B8-9.0141(4) states, “controlled substances shall not be prescribed through the use of telemedicine except for the treatment of psychiatric disorders.” Psychiatric disorders include Substance Use Disorders since the DSM-V classifies addiction as a mental health condition. Although the Standards for Telemedicine Practice under Rule 64B-9.0141, Florida Administrative Code, allows licensed practitioners to prescribe controlled substances for psychiatric disorders via telehealth technology, the federal law has lagged somewhat behind.

Controlled Substances via Telehealth

The federal Controlled Substances Act requires a practitioner to register to prescribe controlled substances via telehealth. This special registration was intended to increase patients’ access to practitioners who can prescribe controlled substances via telemedicine in limited circumstances. The registration would allow a practitioner to deliver, distribute, dispense, or prescribe a controlled substance via telemedicine. Further, under the special registration, a practitioner would not need to examine a patient in person – a telemedicine encounter would be sufficient. Currently, practitioners have not been able to apply for the special registry under the Controlled Substances Act since the DEA has yet to promulgate the final rules for a registration’s application process and procedures. However, this should change in the near future. On October 24, 2018, President Trump signed into law the SUPPORT Act which mandates that the DEA’s final rule for the special registration be in place within one year of the enactment of the SUPPORT Act.

Once the final rule for the special registry is promulgated, registration opens up, and a Florida practitioner obtains special registration, that practitioner should be able to prescribe controlled substances without an “in-person” face-to-face encounter. The practitioner should be able to prescribe controlled substances for psychiatric disorders via telemedicine technology (audio and video). However, keep in mind, a practitioner must still follow standards of care for his or her practice act including, but not limited to, obtaining previous medical records, preliminary and routine lab work (e.g. urine analysis) or other diagnostic studies to determine if the patient is or continues to be an appropriate candidate for a controlled substance prescription. To comply with Florida law a practitioner prescribing controlled substances will need to adhere to Section 456.44, Controlled Substance Prescribing and Rule 64B8-9.013, Florida Administrative Code, Standards for the Use of Controlled Substances for the Treatment of Pain. When treating patients with controlled substances via telemedicine, careful planning will need to be implemented in order to obtain lab results, other diagnostic tests, or other practitioners’ medical records ahead of scheduled telemedicine encounters.