February 4, 2023

Volume XIII, Number 35

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February 03, 2023

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February 02, 2023

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New Florida Law Allows Telemedicine Prescribing of Controlled Substances

Florida has taken another step towards expanding telemedicine.  On April 6, 2022, Governor Ron DeSantis signed into law legislation to remove Florida’s prior restrictions on telemedicine prescribing of controlled substances. Previously, Florida had a general prohibition on prescribing controlled substances via telemedicine, with only narrow exceptions. The new law (SB 312) eliminates the ban for all controlled substances except Schedule II. Schedule II drugs can be prescribed via telemedicine, but only if the clinical situation meets one of the four narrow exceptions (more on that below). 

The law is a big win for Florida patients with medical conditions requiring controlled substances as part of the treatment regimen. This includes, for example, endocrinology or substance use disorder (both of which use Schedule III medications now permitted under the new law), allowing these patients to obtain better access to more fulsome care. The law will also allow Florida clinicians to more easily prescribe refills in connection with their ongoing care management because the clinician can periodically conduct patient exams via telemedicine instead of requiring in-person exams even when those exams might be viewed as medically unnecessary. 

Some stimulant medications commonly prescribed in psychiatry are Schedule II drugs, which could potentially meet one of the pre-existing exceptions if they are prescribed for treatment of a psychiatric disorder.  Most opioids are Schedule II drugs not allowed under this new law.

Florida as a National Leader in Telemedicine Policy

Well before the COVID Public Health Emergency, Florida policymakers had the foresight to favorably position the Sunshine State with some of the most forward-thinking telemedicine laws in the United States.  This vision was reflected in the Board of Medicine granting waivers to telemedicine providers under pilot programs dating back to 2014 (e.g., telepsychiatryasynchronous prescribingobesity). The Legislature then created a groundbreaking State-sponsored Telehealth Advisory Council in 2016.  That same year, the Board of Medicine allowed telemedicine prescribing of controlled substances for treatment of psychiatric disorders. In 2019, lawmakers enacted a complete overhaul of Florida telehealth laws and created a registration process to allow out-of-state clinicians to quickly and easily obtain permission to treat Florida patients via telemedicine. And there is a rulemaking workshop currently rewriting certain regulations to better accommodate telemedicine models. (Read Foley’s comments on that rule here.)

The result of this multi-year effort allowed Florida residents to enjoy increased access to medical care, including behavioral health, while still giving the Department of Health regulatory oversight on quality. When the COVID Public Health Emergency occurred, Florida implemented additional waivers allowing even more broad use of telemedicine, eventually sunsetting them last year. (Our prior discussions of Florida’s telehealth waivers are available herehere, and here.)

What is Florida’s Controlled Substance Telemedicine Prescribing Law?

The new law amends Florida’s telehealth statute as follows (new text is underlined):

Florida Statutes 456.47 Use of telehealth to provide services.

(2) PRACTICE STANDARDS.

[…]

(c) A telehealth provider may not use telehealth to prescribe a controlled substance listed in Schedule II of s. 893.03 unless the controlled substance is prescribed for the following:
1. The treatment of a psychiatric disorder;
2. Inpatient treatment at a hospital licensed under chapter 20 395;
3. The treatment of a patient receiving hospice services as defined in s. 400.601; or
4. The treatment of a resident of a nursing home facility as defined in s. 400.021.

The law is effective starting July 1, 2022.

What About Federal Laws?

Clinicians should continue to be mindful of prescribing requirements under federal laws, as telemedicine prescribing of controlled substances is also governed by the Ryan Haight Act.  Among other things, the Ryan Haight Act requires a threshold in-person examination between the prescriber and the patient, although there are seven exceptions for the practice of telemedicine

Florida law must be read in harmony with the Ryan Haight Act requirements, and a prescriber must comply with both Florida and federal laws in this regard. Clinicians delivering care via telemedicine, particularly across multiple states, must understand and navigate many intersecting state and federal laws on telemedicine, medical practice, fraud and abuse, and controlled substances.

© 2023 Foley & Lardner LLPNational Law Review, Volume XII, Number 97
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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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