Health Law Monitor
Telemedicine: Prescribing Limitations
November 29, 2021
By: John Mark Huff
The West Virginia Medical Practice Act’s section regarding telemedicine provides some limitations on a physician’s ability to prescribe Schedule II controlled substances. A physician practicing telemedicine in West Virginia may not solely use telemedicine technologies to prescribe a patient controlled substances listed in Schedule II of the Uniform Controlled Substances Act.1 However, the telemedicine prescribing limitations “do not apply to a physician or a member of the same group practice with an established patient.”2
Further, telemedicine prescribing limitations do not apply to a physician treating a patient who is a minor, or 18 years of age or older, if the patient is “enrolled in a primary or secondary education program and are diagnosed with intellectual or developmental disabilities, neurological disease, Attention Deficit Disorder, Autism, or a traumatic brain injury.”3 This treatment must be consistent with guidelines “set forth by organizations such as the American Psychiatric Association, the American Academy of Child and Adolescent Psychiatry, or the American Academy of Pediatrics.“4 As always, “the physician must maintain records supporting the diagnosis and the continued need of treatment.”5
Moreover, physicians cannot “prescribe any pain-relieving” Schedule II controlled substance set forth in the Uniform Controlled Substances Act “as a part of a course of treatment for chronic nonmalignant pain solely based upon a telemedicine encounter.”6 However, telemedicine “prescribing limitations…do not apply to a physician or a member of the same group practice with an established patient.”7 Additionally, a physician cannot “prescribe any drug with the intent of causing an abortion.”8
It should be noted that the “prescribing limitations in this subsection do not apply to a hospital, excluding the emergency department, when a physician submits an order to dispense a controlled substance, listed in Schedule II of the Uniform Controlled Substances Act, to a hospital patient for immediate administration in a hospital.”9
Also, during the duration of the COVID-19 Pandemic, some prescribing limitations have been relaxed. Per the West Virginia Board of Pharmacy’s COVID-19 updated Schedule II prescribing information, which was published on April 1, 2020, Governor Justice, in Executive Order No. 17-2010, “waived the requirement that for chronic pain patients there must be an in-person physical examination every 90 days prior to prescribing a refill for a Schedule II opioid medication to an existing patient for chronic pain treatment…provided that the provider utilizes other appropriate tools to evaluate the patient at these intervals, and assesses whether continuing the course of treatment would be safe and effective for the patient.”11 Additionally, more information regarding changes to Schedule II prescribing, outlined by the Drug Enforcement Administration12 (“DEA”), may be found on the West Virginia Board of Pharmacy’s website.13 The DEA has also provided a decision-tree regarding controlled substance prescribing during the COVID-19 Pandemic, which can be accessed below.14 It should be noted that these relaxed prescribing procedures were implemented as a result of the COVID-19 Pandemic and will likely go away once the pandemic is declared to be over.
1 W. Va. Code § 30-3-13a(g)(1).
2 Id.
3 W. Va. Code § 30-3-13a(g)(2).
4 Id.
5 Id.
6 W. Va. Code § 30-3-13a(g)(4).
7 Id.
8 W. Va. Code § 30-3-13a(g)(5).
9 W. Va. Code § 30-3-13a(g)(3).
10 http://apps.sos.wv.gov/adlaw/executivejournal/readpdf.aspx?DocID=89755 (last visited November 28, 2021).
11 https://www.wvbop.com/article.asp?id=49 (last visited November 28, 2021).
12 https://www.wvbop.com/www/download_resource.asp?id=295 (last visited November 28, 2021).
13 https://www.wvbop.com/article.asp?id=49 (last visited November 28, 2021).
14 https://www.deadiversion.usdoj.gov/GDP/(DEA-DC-023)(DEA075)Decision_Tree_(Final)_33120_2007.pdf (last visited November 28, 2021).