Ask An Attorney: Best Practices for Prescribing Opioids as a Covering Provider
- David H. Fitch
- 14 minutes ago
- 4 min read
Q. Opioid abuse by patients continues to be a serious concern, which our practice works diligently to address while treating our patients. When covering for a colleague who is on vacation, am I permitted to issue prescriptions for opioids to their patients?
A: Yes. An authorized practitioner who is covering for a colleague who is temporarily unavailable can prescribe a controlled substance to their patients if certain criteria are met.
In response to the public health crisis related to the misuse, abuse, and risk of addiction to opioid-based painkillers, the Centers for Disease Control and Prevention (CDC) issued opioid-treatment guidelines for health care professionals and patients. Under New York State’s Internet System for Tracking Over-Prescribing Act (I-STOP), prescribers are required to review the state’s Prescription Monitoring Program Registry (PMP Registry) within 24 hours of issuing a prescription for a controlled substance. In addition, in 2017 the New York State Department of Health mandated accredited continuing medical education (CME) for all prescribers.
Under the I-STOP law, the PMP Registry must be checked every time before a Schedule II, III, or IV controlled substance is prescribed. It is crucial for prescribers to complete a physical exam and obtain a thorough history from the patient, order appropriate diagnostic testing to identify the existence and source of pain, implement alternative treatments when indicated, and prescribe only the dosage supported by the provider’s findings. The PMP Registry is accessible 24 hours a day, seven days a week through the New York State Health Commerce System, and prescribers may authorize a designee in the same practice to check the registry on their behalf.
Once these requirements are met, Department of Health regulations allow an authorized practitioner to issue a controlled substance prescription as part of continuing therapy during the temporary absence of the initial prescriber if the covering practitioner has either (i) direct access to the patient’s medical record and such record supports continued prescribing, or (ii) direct and adequate consultation with the initial prescriber. However, if the covering provider does not have access to the patient’s medical records, the prescribing activity must be documented and transmitted to the initial prescriber upon their return. (See 10 NYCRR §80.63(3)). [1]
A physician’s failure to follow mandatory guidelines and complete the required CME can lead to disciplinary action by the New York State Office of Professional Medical Conduct. If misconduct by a physician prescribing opioids results in a patient’s death, the New York State Court of Appeals has held that the physician can be held criminally liable. (See People v. Stan XuHui Li, 34 NY3d 357 (2019)).
Due to the ongoing risks of opioid abuse, care providers must remain vigilant in adhering to all applicable regulations to protect patients and avoid potential liability. New York allows a covering practitioner to prescribe controlled substances to another provider’s patients, but only when the proper safeguards are followed and the clinical justification for continued therapy is well documented.
Professional and Civil Liability Considerations
Beyond criminal exposure, physicians who prescribe opioids without complying with regulatory and clinical standards may also face civil malpractice claims or disciplinary proceedings. Allegations often involve negligence in prescribing - such as failing to adequately assess the patient’s condition, overlooking signs of dependency, or neglecting to review the patient’s prescription history. When covering for another provider, the risk may increase because the physician has limited familiarity with the patient’s history. To reduce exposure, covering physicians should carefully document the basis for continuing a controlled substance prescription and the medical necessity supporting that decision. Comprehensive documentation that demonstrates compliance with legal and professional standards is essential in defending against claims of negligent prescribing.
Communication and Coordination with the Initial Prescriber
Whenever possible, communication between the covering and initial prescriber should occur to ensure continuity of care and compliance with New York regulations. Even a brief written or electronic exchange confirming the patient’s treatment plan can help avoid duplicative or conflicting prescriptions. Practices should consider written coverage protocols specifying when and how covering physicians may prescribe controlled substances, how records are accessed, and how the prescribing information is relayed to the returning provider. These protocols not only promote safe and consistent care but also serve as important evidence of a practice’s diligence in risk management.
Emerging Risk Management Trends
Given the heightened scrutiny surrounding opioid prescribing, many health care organizations are implementing multimodal pain management strategies and enhanced monitoring systems to identify high-risk prescriptions. Covering physicians should be aware of these initiatives, including the use of opioid treatment agreements, follow-up visits, and pharmacist collaboration. Some malpractice carriers also require written opioid prescribing policies that align with the CDC and state guidelines. By maintaining consistent standards across the practice, providers can reduce the likelihood of patient harm, regulatory violations, and liability exposure.
Reprinted with permission from the November/December 2025 issue of The Bulletin from the Monroe County Medical Society and available as a PDF file here.
David H. Fitch is a Partner in Underberg & Kessler LLP’s Health Care, Litigation, and Municipal Law practice groups. He represents health care providers and facilities, municipalities, individuals, and businesses in complex litigation in state and federal courts. David can be reached at dfitch@underbergkessler.com or 585.258.2840.