DEA Extends COVID Telemedicine Prescribing Rules for Controlled Substances

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UPDATE: DEA and HHS Extend Telemedicine Flexibilities through 2024

October 9, 2023
Statement from the DEA on Telemedicine Flexibilities deadline: “We continue to carefully consider the input received and are working to promulgate a final set of telemedicine regulations by the fall of 2024, giving patients and medical practitioners time to plan for, and adapt to, the new rules once issued.  Accordingly, DEA, jointly with the Department of Health and Human Services (HHS), has extended current telemedicine flexibilities through December 31, 2024.  The full text of the extension, entitled “Second Temporary Extension of COVID-19 Telemedicine Flexibilities for Prescription of Controlled Medications,” was submitted to the Federal Register jointly with HHS on September 29.”

On May 3rd the U.S. Drug Enforcement Administration announced that it had temporarily extended the COVID-19 telemedicine flexibilities for prescribing controlled substances. This decision, which referenced the 38,000 public comments submitted since the proposed telemedicine rules were first announced in February, will allow the DEA to consider further changes to those rules before they are finalized.

For details on the proposed DEA rules, please see our article DEA Announces Proposed Telemedicine Rule Change for Controlled Substances. The rules, which had been set to take effect with the expiration of the federal COVID Public Health Emergency (PHE) on May 11th, are now delayed.

Briefly, The Ryan Haight Online Pharmacy Consumer Protection Act of 2008 requires prescribers to conduct an in-person examination to evaluate each new patient at least once before prescribing a controlled substance. During the PHE, the in-person requirement was changed to allow prescribers to perform the initial evaluation through videoconferencing. Since then, prescribers have been able to form treatment relationships and prescribe controlled substances to patients whom they have never examined in person.

The proposed DEA rules would change the Ryan Haight Act to allow telemedicine-only prescribing after the PHE has ended, but they allowed only 30-day prescriptions of certain controlled substances that did not include opioid pain medications or Schedule II medications. The new rules would also provide a 180-day grace period for prescribing relationships formed during the PHE. In response, there was significant concern raised in the healthcare community, including in behavioral health, that the new rules would unnecessarily restrict care; this led to the temporary extension.

Until further information is provided by the DEA, prescribers will be able to continue seeing new patients and prescribing controlled substances without the need for an in-person medical evaluation, as long as the prescriptions are otherwise appropriate and within the course and scope of the prescriber’s medical practice.

However, it is very important to note that these requirements only address federal law under the Controlled Substance Act. Prescribers must also follow individual state laws as they relate to prescribing controlled substances, and they must have state licensure for any out-of-state treatment, including telemedicine encounters and/or prescribing medications, in the state in which a patient is physically located at the time of treatment.

MIEC will keep our members apprised of any updates in this matter, but members are also encouraged to remain vigilant of any new announcements from the DEA.