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Medicine, Telemedicine and Temporary Expansion of Prescribing Rights

03.19.2020

It seems that the COVID-19 Pandemic has hit everyone, but maybe no industry is being affected more than the healthcare industry. Not only are healthcare providers affected by the same school closings and staffing concerns of other businesses, but healthcare providers are on the front lines of the battle against the infectious disease – facing the risk head-on.

To combat the national emergency, the Trump administration has taken steps to support the healthcare industry as it takes the lead in addressing the most pressing healthcare concerns. First and foremost, the administration advises that all elective, nonessential medical procedures be delayed. Such an action across the United States will help ensure that medical professionals and medical supplies go where they are most needed during this crisis.

Several professional associations have supported this recommendation. Here is a link to the announcement by the American Association of Orthodontists - https://www1.aaoinfo.org/covid-19. The American Dental Association has made a similar announcement - https://www.ada.org/en/press-room/news-releases/2020-archives/march/ada-calls-upon-dentists-to-postpone-elective-procedures. And, here is a link to the American Academy of Opthalmology announcement - https://www.aao.org/coronavirus. There are numerous other professional organizations in which our clients are affiliated. Providers who are unsure of the current recommendations applicable their specialty, should reach out to their respective organizations for guidance.

In addition to working to ensure coverage is available to those most in need, by declaring a national emergency last Friday, President Trump has opened up additional flexibility for states to expand medical services covered by Medicare and Medicaid. Those citizens currently covered by the Medicare and Medicaid programs, approximately 135 million Americans, include some of the most at-risk citizens in this COVID-19 crisis. Under special rules, states can now seek relief from certain regulatory restrictions through the duration of the emergency.

In an effort to expand healthcare coverage opportunities during the pandemic to those in need, the Centers for Medicare & Medicaid Services (CMS) have granted several blanket waivers of conditions of participation with regard to Medicare, and have made several additional waivers of conditions of participation available to states upon request with regard to Medicaid. Here is a link to the COVID-19 Emergency Declaration Health Care Providers Fact Sheet published by CMS - https://www.cms.gov/files/document/covid19-emergency-declaration-health-care-providers-fact-sheet.pdf.

As the ability to use telemedicine services as a means of providing patient care without in-person interaction during this crisis is apparently opening up, the Drug Enforcement Administration (DEA) just announced yesterday that it has lifted some restrictions on the prescription of controlled substances (including opioids) via telemedicine. https://www.deadiversion.usdoj.gov/coronavirus.html.

Historically, healthcare providers could always prescribe controlled substances using telemedicine; however, the provider must have first had an in-person evaluation of the patient. One specific exception to this rule is when the Secretary of Health and Human Services has declared a public health emergency. As such, for so long as the public health emergency exists, providers may prescribe controlled substances via telehealth without the initial in-person medical evaluation, so long as:

  • The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of his or her profession;
  • The telemedicine communication is conducted using audio-visual, real-time, two-way interactive communication system; and
  • The practitioner is acting in compliance with all applicable federal and state laws.

Although we understand the benefit of this temporary relaxation of the federal rules for the prescribing of controlled substances, we would caution any provider prescribing a controlled substance under this emergency exception to doubly ensure his or her compliance with state laws related to the prescribing of opioids and other controlled substances, specifically, any state prescription drug monitoring program. Even in an emergency, providers need to take care to ensure patients are not shopping for narcotics.  

Koley Jessen continues to monitor the situation and stay current on the issues facing healthcare providers in light of the COVID-19 outbreak. If you have additional questions or concerns as the situation develops, please contact a member of the Koley Jessen Health Law Practice Group.

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