Emergency Changes to Controlled Substance Prescribing During the COVID-19 Pandemic

Recently, after Health and Human Services Secretary Alex M. Azar II declared a public health emergency in the United States, DEA prescribing restrictions have become more relaxed.

Medical practitioners are typically unable to prescribe controlled substances through the use of telemedicine or the internet without first conducting an in-person medical evaluation. But beginning with Secretary Azar’s declaration on January 30, 2020, and throughout the duration of the public health emergency, practitioners who are registered with the DEA now have the ability to prescribe controlled substances to patients without first having conducted an in-person medical evaluation, provided three conditions met:

  1. The prescription issued must be for a legitimate medical purpose by a practitioner acting in the usual course of their professional practice;
  2. The telemedicine communication is conducted using an audio-visual, real-time, two-way interactive communication system (this means not simply over the phone); and
  3. The practitioner is acting in accordance with applicable federal and state law.

If these three conditions have been satisfied, practitioners can issue prescriptions in any manner outlined by the traditional DEA and Illinois regulations, including:

  • Electronic prescriptions for schedules II – V;
  • Calling in an emergency schedule II prescription to the pharmacy;
  • Calling in a schedule III-V prescription to the pharmacy; or
  • Faxing in a schedule III-V prescription to the pharmacy.

A schedule II prescription may only be called in to the pharmacy during an “emergency situation,” meaning a situation in which the prescribing practitioner determines that:

  1. Immediate administration of the controlled substance is necessary for proper treatment of the intended ultimate user;
  2. No appropriate alternative treatment is available, including administration of a drug that is not a controlled substance under Schedule II of the Act; and
  3. It is not reasonably possible for the prescribing practitioner to provide a written prescription to be presented to the person dispensing the substance, prior to the dispensing.

It should be noted that this temporary policy change mainly relates to initial prescriptions. The DEA guidelines specifically state that if the prescribing practitioner has previously conducted an in-person medical evaluation of the patient, the practitioner may issue a prescription for a controlled substance after having communicated with the patient via telemedicine, or any other means, regardless of whether a public health emergency has been declared by the Secretary of Health and Human Services, so long as the prescription is issued for a legitimate medical purpose and the practitioner is acting in the usual course of his/her professional practice.

In addition, prescribers are still required to check the Prescription Monitoring Program (“PMP”) for the patient’s information and controlled substance history before providing a prescription for schedule II narcotics and other scheduled medications. This attempt must be documented in the patient’s medical record. Any prescriber not in compliance with this law can face disciplinary enforcement by the Illinois Department of Financial and Professional Regulation (“IDFPR”).

The DEA is attempting to give practitioners all the tools available in order to continue safely assisting patients during this time of particular need. This broadening of prescribing abilities will be in effect for the duration of the public health emergency.

Due to the unknown nature of the COVID-19 global pandemic, further changes to federal and state policies may occur.

Please to not hesitate to reach out to Crick Walanka Law Group, Ltd. with any questions during this time.

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