Winstead PC Shareholder Sarah Churchill Llamas recently spoke with Medpage today about the federal emergency orders in response to the COVID-19 pandemic that currently allow physicians to prescribe opioid medications to patients via telemedicine. An excerpt is below:

“In the COVID-19 era, under relaxed federal emergency orders, licensed clinicians have been able to prescribe opioid analgesics for their patients even if they've only ever seen the patient via telehealth, rather than in person.

For providers like Stephen Bekanich, MD, a palliative care physician for Ascension Texas in Austin, this provision allows him to help seriously ill patients without requiring in-person visits that may be difficult for them or could expose them or their caregivers to the virus.

The Drug Enforcement Agency issued an exception allowing prescribing of controlled substances via telemedicine without a prior in-person visit during the pandemic, though it specifies that telephone-only communications are not part of that exception.

CMS has indicated that it will revisit guidelines around telehealth services generally at the time when the emergency order is phased out, Bekanich noted. "But will it address the prescribing situation?"

This question plays out in the context of the other, ongoing national epidemic of prescription opioid overdoses, with federal agencies trying to curb excessive opioid prescribing, said attorney Sarah Churchill Llamas, chair of the healthcare industry group at the law firm Winstead PC in Austin.

"Doctors in general are concerned about prescribing opioids," she said. The Texas Medical Board has rules for how to establish the patient-doctor relationship, and it should still meet the same standard of care whether virtually or in person. For some regulators, it's an ongoing question whether it's even possible to establish a professional relationship with a patient via telemedicine.

Because every state is different, both for opioids and telehealth, Llamas encourages providers to take a close look at existing state law. Patients receiving hospice or palliative care and those with cancer may be treated differently in the regulations, but that is no guarantee the prescribing physician won't draw regulatory scrutiny, she added. For those who want to practice across state lines, it's even more complex.

"At the end of the day, even if doctors do everything they're supposed to, they could still get reviewed by their state medical board. Now that you're overlaying telemedicine on top of opioid prescribing, I could see where a physician might say: 'I just don't feel comfortable going out on a limb with this,'" she said. "My advice, do what's best for your patients' care, but plan for the future. You have to know that the relaxation of regulations due to the emergency orders is going to end, and that may be tough for your patients."

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Sarah Churchill Llamas is a healthcare and health information technology attorney with specific knowledge in health IT solutions, having been appointed a Health IT Fellow by the Office of National Coordinator for Health IT under the U.S. Department of Health and Human Services. She is a shareholder in Winstead's Austin office, and is chair of the firm’s Healthcare and Life Sciences Industry Group as well as a member of the Corporate Securities/Mergers & Acquisitions Practice Group.

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