September 19, 2021

Volume XI, Number 262

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Florida Expands Telemedicine Controlled Substance Prescribing

The Florida Board of Medicine recently met and voted to uphold a rule allowing controlled substances to be prescribed via telemedicine for the treatment of psychiatric disorders. This change has enormous potential to benefit patients in the Sunshine State, promoting access to mental health services and receiving the full scope of psychiatric treatment. Providers of telemedicine-based services, as well as providers of psychiatric services, should take this opportunity to explore the possibilities of offering care via telemedicine for psychiatric disorders.

Last year, the Board granted special waivers to three psychiatric mental health organizations, allowing them to prescribe controlled substances via telemedicine. Based, at least in part, on the successful results of those trailblazers, the Board determined to revise the regulation and permit the practice without a waiver process.

Florida Telemedicine

The change is to subsection (4) of Florida Administrative Code r. 64B8-9.0141 (Standards for Telemedicine Practice)With the amended rule, the regulation will now state as follows:

(4) Controlled substances shall not be prescribed through the use of telemedicine except for the treatment of psychiatric disorders. This provision does not preclude physicians or physician assistants from ordering controlled substances through the use of telemedicine for patients hospitalized in a facility licensed pursuant to Chapter 395, F.S.

Florida’s approach is consistent with new remote prescribing rules among a growing number of states (e.g., Delaware, New Hampshire) that are electing to defer to the physician’s independent medical judgment and prevailing standard of care, allowing controlled substances to be prescribed via telemedicine. This differs from the approach of imposing specific telemedicine practice standards that notably differ from in-person medical encounters.

The Board’s current telemedicine regulations were originally issued in the Spring of 2014 and reflect a flexible framework thoughtfully designed to allow physicians to offer care using new technologies without arbitrary barriers to the practice of medicine. The Legislature may pick up the bill again next year, but until then, the Board regulations represent the most current guidance for Florida telemedicine practitioners.

© 2021 Foley & Lardner LLPNational Law Review, Volume VI, Number 53
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About this Author

Nathaniel Lacktman, Health Care Attorney, Foley and Lardner Law Firm
Partner

Nathaniel (Nate) Lacktman is a partner and health care lawyer with Foley & Lardner LLP, and a Certified Compliance & Ethics Professional (CCEP). His practice focuses on health care compliance, counseling, enforcement and litigation, as well as telemedicine and telehealth. Mr. Lacktman is a member of the firm’s Health Care Industry Team which was named “Law Firm of the Year — Health Care Law” for three of the past four years on the U.S. News – Best Lawyers® “Best Law Firms” list. 

813-225-4127
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