During the COVID-19 public health emergency, the United States Department of Justice’s Drug Enforcement Administration (DEA) implemented special rules allowing certain controlled medications to be prescribed by telehealth/telemedicine, without ever meeting the patient in-person. Although the federal pandemic emergency declaration is ending in May 2023, the DEA’s new proposed telemedicine regulations would permanently allow such prescriptions.

DEA’s New Proposed Telemedicine Regulations

On February 24, 2023, the DEA announced a proposal to permanently implement the telemedicine flexibilities that have been in place for nearly 3 years due to the COVID-19 pandemic. The DEA stated that this will help by “expanding patient access to critical therapies beyond the scheduled end of the COVID-19 public health emergency,” and opened up the proposed rules for a 30-day public comment period on March 1, 2023.

Permanent Telemedicine Flexibilities Press Release Recap

The DEA’s proposal specifically relates to telehealth consultations, both video and audio-only, where the practitioner has never met the patient in-person and the patient was not referred by a practitioner who has met them in-person. For such consultations, it is proposed that practitioners permanently be allowed to prescribe up to a 30-day supply of non-narcotic controlled medications on DEA Schedules III, IV, and V (including combinations of such medications), or up to a 30-day supply of buprenorphine as a treatment for opioid use disorder. These types of prescriptions may be a part of continuous medical treatment (“maintenance”), or withdrawal management treatment (“detoxification”), respectively.

The proposed rules have no impact on telehealth consultations if controlled medications are not prescribed, if the practitioner has previously examined the patient in-person, or if the patient was referred by a medical practitioner who has examined the patient in-person. The DEA’s press release summarizes that “the proposed rules would provide safeguards for a narrow subset of telemedicine consultations—those telemedicine consultations by a medical practitioner that has: never conducted an in-person evaluation of a patient; AND that result in the prescribing of a controlled medication.”

How the Proposed Rules for Permanent Telemedicine Flexibilities Affect Your Practice

The DEA’s new telemedicine regulations seek to facilitate patients’ access to behavioral healthcare via ePrescribing, while preventing the abuse of controlled substances. The DEA notes that affected prescriptions must still be made by a practitioner who is conducting a “bona fide medical evaluation of the patient at the remote location and is otherwise prescribing for a legitimate medical purpose while acting in the usual course of professional practice.” Thus, there may be little or no change for your practice. The scope of the rules is quite narrow, and the rules are largely a continuation of what has already been in effect for the past 3 years during the COVID-19 pandemic. So, if your practice has already been prescribing controlled substances to new patients who you have not yet met in-person, it is possible that you will be able to continue to do so.

The relevant drugs are on Schedules III–V and have, at most, a moderate potential for physical and psychological dependence. These include AMBIEN®, Ativan®, ketamine, Valium®, Xanax®, and many others. Drugs that are on Schedules III–V but are also classified as narcotics, such as tramadol (Schedule IV), cannot be prescribed without an in-person appointment. Furthermore, once a 30-day prescription has been exhausted, an in-person appointment is required before more controlled substances can be prescribed.

Overall, the proposed rules may help practices to continue serving the immediate needs of certain patients. Although an in-person appointment is required after the initial 30-day prescription, these rules will help patients get the medications they need, including patients who have switched providers due to having recently moved or changed insurance companies. Patients who cannot immediately secure time off work and/or childcare may be able to avoid going without needed medication, and providers may be able to see more patients with less delay using telehealth. These are all desirable outcomes.

Practices should keep in mind that if the proposed rules are implemented, prescriptions must nevertheless be recorded in the required prescription drug monitoring program (PDMP) computer database, or if the computer system is not working, the practitioner can only offer a 7-day prescription, but they must record their attempts to access the computer system. Once the practitioner is successful in recording the data in the PDMP, the proposed rules allow an extension to up to a 30-day prescription (inclusive of the initial, briefer prescription), without an in-person visit. The right software can help with this. Valant integrates with many states’ PDMPs helping practices to avoid the extra hassle of logging into a separate, potentially confusing computer system.

Stay Informed – Practice Resources

The proposed DEA rules may take effect before the COVID-19 public health emergency expires in May 2023, but it is also possible that there will be further changes in response to public comments, a delay (in which case the legal authorization to make such prescriptions may lapse for a time), or that the proposed rules may somehow not be implemented at all. Click here for a summary of the proposed rules (PDF format), and keep an eye on the Federal Register, including the separate proposed rule for buprenorphine, and other sources of news to be apprised of the final outcome. The DEA Controlled Substance List (PDF format) is also a helpful resource to determine what schedule a drug is on and whether or not it is classified as a narcotic.

The information provided in this report does not, and is not intended to, constitute legal or medical advice. All information and content available in this report are for general informational purposes only and include links to other third-party websites such as governmental websites and the author’s corporate website. Such links are only for the convenience of the reader. Readers should contact their attorney to obtain advice with respect to any particular legal or medical subject matter.