This month, the Drug Enforcement Administration (“DEA”), in conjunction with the Substance Abuse and Mental Health Services Administration (“SAMHSA”), issued a Second Temporary Rule further extending the telemedicine waivers of the Ryan Haight Act (“RHA”) promulgated during the COVID-19 Public Health Emergency (“PHE”) from November 11, 2023 until December 31, 2024. Under the Second Temporary Rule, practitioners may continue to prescribe schedule II-V controlled medications via telemedicine for new and existing patients without conducting a prior in-person medical evaluation through 2024. 

As described in a previous update, the DEA proposed a rule in March 2023 to extend some flexibilities while making permanent certain scenarios in which a practitioner could prescribe controlled substances without a prior in-person evaluation. On May 10, 2023, the DEA in conjunction with SAMHSA issued the First Temporary Rule which (1) extended the full set of RHA waivers promulgated during the PHE until November 11, 2023 and (2) extended the telemedicine flexibilities until November 11, 2024 for patient-practitioner telemedicine relationships established on or before November 11, 2023, as explained in an earlier post. In September 2023, the DEA hosted Telemedicine Listening Sessions to obtain additional industry and stakeholder input.

This Second Temporary Rule extends the current flexibilities for prescribing controlled medications via telemedicine for all practitioner-patient relationships (not just those established on or before November 11, 2023) until the end of 2024. Some concerns and reasons noted by the DEA for extending the telemedicine flexibilities include:

• Reductions in access to care for patients who may not have an established practitioner-patient relationship;
• Practitioner backlogs for providing in-person medical evaluations; and
• Urgent public health needs for certain controlled medications.

Sheppard Mullin will continue to monitor developments and provide updates as they arise.