Saturday, July 2 2022

Florida has taken another step toward expanding telemedicine. On April 6, 2022, Governor Ron DeSantis signed into law legislation to remove Florida’s earlier restrictions on telemedicine prescribing of controlled substances. Previously, Florida had a blanket ban on prescribing controlled substances via telemedicine, with very few exceptions. The new law (SB 312) removes the ban on 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 details below).

The law is a big win for Florida patients with medical conditions that require controlled substances as part of the treatment regimen. This includes, for example, endocrinology or substance use disorders (both of which use Schedule III drugs now permitted under the new law), enabling these patients to achieve better access to more comprehensive care. The law will also make it easier for clinicians in Florida to order refills as part of their ongoing care management because the clinician can periodically perform patient exams via telemedicine instead of requiring in-person exams, even when those exams could be considered medically unnecessary.

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

Florida as a national telemedicine policy leader

Long before the COVID public health emergency, Florida policymakers had the foresight to favorably position the Sunshine State with some of the most cutting-edge telemedicine laws in the United States. This view has been reflected in the Board of Medicine granting waivers to telemedicine providers in pilot programs dating back to 2014 (e.g., telepsychiatry, asynchronous prescription, obesity). The Legislature then created a state-sponsored Telehealth Advisory Board in 2016. In the same year, the Board of Medicine authorized telemedicine prescription of controlled substances for the treatment of psychiatric disorders. In 2019, lawmakers enacted a comprehensive overhaul of telehealth laws in Florida and created a registration process to allow out-of-state clinicians to quickly and easily obtain approval to treat patients from Florida via telemedicine. And there is a regulatory workshop that is currently rewriting some regulations to better fit telemedicine models. (Read Foley’s comments on this rule here.)

The result of this multi-year effort has provided Florida residents with increased access to medical care, including behavioral health, while leaving regulatory oversight of quality to the Department of Health. When the COVID public health emergency occurred, Florida implemented additional waivers allowing for even broader use of telemedicine, eventually eliminating them last year. (Our previous discussions of Florida’s telehealth waivers are available here, here, and here.)

What is the Florida Controlled Substance Telemedicine Prescribing Act?

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

Florida Statutes 456.47 Use of telehealth to provide services.



(c) A telehealth provider cannot use telehealth to prescribe a controlled substance listed in Annex II of Art. 893.03 unless the controlled substance is prescribed for the following:
1. The treatment of a psychiatric disorder;
2. Hospital treatment in a licensed hospital under Section 20395;
3. The treatment of a patient receiving palliative care services within the meaning of art. 400.601; or
4. The treatment of a resident of a nursing home within the meaning of s. 400.021.

The law comes into force on July 1, 2022.

What about federal laws?

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

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

You want to know more ?

For more information on telemedicine, telehealth, virtual care, remote patient monitoring, digital health, and other healthcare innovations, including the team, publications, and rep experience , visit Foley’s Telemedicine and Digital Health Industry Team.

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