Last week, our blog post discussed the general rules permitting telemedicine in Georgia. Often, our healthcare and business law firm’s provider clients who conduct telemedicine also need to understand the requirements around prescribing controlled substances based on telemedicine visits. This post intends to outline some of the relevant prescribing rules in Georgia and the exceptions due to the Public Health Emergency (PHE) created by COVID-19. This post intends to outline some relevant Georgia rules and regulations relating to telemedicine. If you have questions about telemedicine or prescribing 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.
Georgia Rules on Prescribing Controlled Substances via Telemedicine
As discussed in our prior blog post on the general telemedicine rules, we look to the Medical Board’s rules on Unprofessional Conduct, among other rules, to decipher what is allowed in Georgia. Rule 360-3-.02 defines Unprofessional Conduct to include subsection (5), which provides that Unprofessional Conduct could 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.” As such, the general rule prohibits prescribing controlled substances via a telemedicine consult. However, the rule does “not prohibit a licensee from prescribing a dangerous drug for a patient pursuant to a valid physician patient relationship in accordance with O.C.G.A. § 33-24-56.4 or a licensee who is on-call or covering for another licensee from prescribing up to a 30-day supply of medications for a patient of such other licensee nor shall it prohibit a licensee from prescribing medications when documented emergency circumstances exist.” Rule 360-3-.02(5). There are other exceptions related to specific Schedule II controlled substances.
Georgia Medical Board’s Emergency Rule
As is clear, the rules in Georgia are limiting when it comes to controlled substances. The State of Emergency caused by COVID-19, however, impacts these rules. Specifically, the Georgia Medical Board adopted Emergency Rule 360-3-0.13-8 effective July 19, 2021, “Practice Through Electronic or Other Such Means During a State of Emergency.” In relevant part to this blog post, the Emergency Rule impacts a Georgia provider’s ability to prescribe via telemedicine during the State of Emergency by providing:
“(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.”
Federal Ryan Haight Act and Public Health Emergency Exception
In addition to the Georgia rules, the federal Ryan Haight Act must be considered. Under this federal rule, prescribing controlled substances generally requires that the Practitioner/prescriber conduct at least one in-person medical evaluation of the patient. 21 U.S.C. Sect. 829(e) (“Controlled substances dispensed by means of the Internet”).
One exception to the general rule requiring in-person medical evaluation is when the Secretary of HHS declares a public health emergency under 42 U.S.C. 247d. Because there is currently a public health emergency, the exception applies. While the PHE continues, the exception will apply and provides as follows:
“DEA-registered practitioners in all areas of the United States may issue prescriptions for all schedule II-V controlled substances to patients for whom they have not conducted an in-person medical evaluation, provided all of the following conditions are met:
- The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of his/her professional practice;
- The telemedicine communication is conducted using an audio-visual, real-time, two-way interactive communication system; and
- The practitioner is acting in accordance with applicable Federal and State laws.”
As is clear from the above, medical providers must be cautious when it comes to prescribing controlled substances based on telemedicine visits. If you have questions about telemedicine rules or prescribing controlled substances 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.
*Disclaimer: Thoughts shared here do not constitute legal advice.