The Controlled Substances Act, as amended by the Ryan Haight Act, generally prohibits prescribing controlled substances via telehealth without a prior in-person examination, subject to certain very limited exceptions. Those exceptions include prescriptions issued during a public health emergency. Thus, since the January 31, 2020 declaration of a public health emergency due to the COVID-19 epidemic, eligible providers have been able to prescribe controlled substances, without a prior in-person visit with a patient, provided:
- The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of his/her professional practice;
- The telemedicine communication is conducted using an audio-visual, real-time, two-way interactive communication system; and
- The practitioner is acting in accordance with applicable Federal and State laws.
The public health emergency is scheduled to end on May 11, 2023.
As discussed in our earlier client alert, on February 24, 2023, the DEA announced proposed rules to allow the prescription of controlled substances based on a telehealth consultation in certain limited circumstances. However, the DEA’s February 24, 2023 proposed rules have not yet been finalized.
On May 3, 2023, the DEA announced that it submitted a draft temporary rule to the Office of Management and Budget, in conjunction with the Department of Health and Human Services, implementing a temporary extension of the COVID-19 pandemic telehealth controlled substances prescribing flexibilities while it considers comments to the February 24, 2023 proposed rules. The DEA has not provided any additional details about the extension, but stated that further information will be provided when the temporary rule is published in the Federal Register.
Follow our blog to receive additional updates and alerts on the DEA’s proposed rules and temporary rule regarding extension of the COVID-19 telehealth controlled substances prescribing flexibilities.