At the beginning of COVID-19, telemedicine rules were softened on the state and federal level. In a previous blog post, we discussed the softened Georgia rules during the COVID-19 State of Emergency in Georgia. Unlike the federal Public Health Emergency that was recently lifted, the Georgia State of Emergency was lifted in early 2022. But now that both the state and federal emergency-statuses are lifted, what does that mean for the telemedicine prescribing exceptions available during COVID-19? This post intends to answer that question. If you have questions about telemedicine rules or would like to discuss this blog post, you may contact our healthcare and business law firm at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, firstname.lastname@example.org. You may also learn more about our law firm by visiting www.hamillittle.com.
Although Georgia has clear requirements for when telemedicine is generally allowed and what the general requirements are (which must, of course, be followed if prescribing is allowed), the only restriction on prescribing via telemedicine is with pain management drugs and controlled substances. The pain management drug rule can be explained easily because it’s a clear-cut rule: Rule 360-3-.07, which allows telemedicine services in Georgia, “does not authorize the prescription of controlled substances for the treatment of pain or chronic pain by electronic or other such means. All treatment of pain or chronic pain must be in compliance with Rule 360-3-.06.” The limits around controlled substances are more complicated and are discussed below.
The general rule in Georgia prohibits prescribing controlled substances via a telemedicine consult. Specifically, Georgia Rule 360-3-.02 defines Unprofessional Conduct to include: “Prescribing controlled substances . . . and/or dangerous drugs . . . for a patient based solely on a consultation via electronic means with the patient, patient’s guardian or patient’s agent.” That is still the rule on the books and, as far as we are aware, there is no move to modify this rule once things return fully to normal.
- State of Emergency Rule
During the Georgia State of Emergency, there was a flexible exception to this rule, “Practice Through Electronic or Other Such Means During a State of Emergency,” that governed from July 19, 2021 until April 15, 2022, which in relevant part, provided as follows:
(1) DEA registered practitioners may issue prescriptions during the State of Emergency for Continued COVID-19 Economic Recovery, as declared by the Governor of the State of Georgia, for controlled substances to patients for whom they have not conducted an in-person medical evaluation, provided all of the following conditions are met:
(A) The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of his/her professional practice;
(B) The practitioner conducted a medical evaluation on the patient using telemedicine communication;
(C) The telemedicine communication is conducted using an audio-visual or audio only, real time, two-way interactive communication system; and
(D) The practitioner is acting within Federal and State law and otherwise following the provisions of Board Rule 360-3-.07.
- Post-State of Emergency Rules
The state of emergency ended on April 15, 2022. Regardless, the Georgia Medical Board has stated it “will continue to recognize the federal authorization for the tele-health prescribing of controlled substances without an in-person exam as long as it is allowed by the HHS and DEA and practitioners meet the criteria set forth in the DEA policy.” Update on COVID State of Emergency, medicalboard.georgia.gov (Apr. 16, 2022). As such, complying with the federal telemedicine prescribing rules explained in our previous blog post ensure compliance with the state (at least for now).
As is clear from the above, medical practices must be thoughtful before offering healthcare telemedicine visits. If you have questions about telemedicine rules or would like to discuss this blog post, you may contact our healthcare and business law firm at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, email@example.com. You may also learn more about our law firm by visiting www.hamillittle.com.
*Disclaimer: Thoughts shared here do not constitute legal advice and are only up-to-date to the date posted (posts are not updated unless otherwise indicated).