On October 6, the Drug Enforcement Administration (DEA) and Substance Abuse and Mental Health Services Administration (SAMHSA) issued a temporary rule providing for a second temporary extension of its COVID-19 telemedicine flexibilities for the prescription of controlled medications. This follow-up comes after the initial extension of these flexibilities, which was announced in May 2023 and would have otherwise expired November 11, 2023, with a more limited exception continuing through November 11, 2024, for patient-practitioner telemedicine relationships established prior to November 11, 2023.

This latest extension extends the full set of COVID-19 telemedicine flexibilities regarding the prescription of controlled medications via telemedicine through December 31, 2024 – i.e., it authorizes all DEA-registered practitioners to prescribe schedule II through V controlled medications via telemedicine through December 31, 2024, regardless of whether the patient and practitioner have previously established a telemedicine relationship. The extensions are intended to avoid lapses in patient care and to allow adequate time for providers to come into compliance with any new requirements or safeguards.

Background

In response to the COVID-19 public health emergency, the DEA granted temporary exceptions to the Ryan Haight Act and its implementing regulations, which generally prohibit a prescribing practitioner from prescribing controlled medications to a patient without first conducting an in-person evaluation, subject to certain exceptions. In March 2023, the DEA published two proposed rules (a general telemedicine rule and a buprenorphine-focused rule), proposing to make permanent some of the pandemic-era flexibilities. The agencies were flooded with public comments (38,000+) to these proposed rules, resulting in the initial extension of the COVID-19 flexibilities.

In September 2023, the DEA hosted listening sessions to receive additional input regarding the prescribing of controlled substances via telemedicine and potential safeguards against diversion. The DEA is continuing to consider revisions to the proposed rules in light of the public comments received and the listening session feedback and is working to issue a new rule by fall 2024. Notably, the agency has indicated that it is “open to considering” implementing a “special registration” process to allow for limited telemedicine prescribing to patients without requiring any in-person medical evaluation. This stance is surprising, given that the DEA has ignored past congressional mandates to create a special registration process. Ultimately, the agency is seeking to provide access to telemedicine when consistent with public health and safety while also mitigating the risks of diversion.

The DEA has not yet issued a statement or press release addressing the second extension. The temporary rule is expected to be formally published in the Federal Register on October 10, 2023.