DEA Announces a Third Extension of COVID-19 Telehealth Flexibilities for Prescription of Controlled Medications

On November 15, 2024, the Department of Health and Human Services (HHS) and the US Drug Enforcement Agency (DEA) issued a joint regulations further extending the flexibilities that have been in place relating to prescribing controlled substances through the use of telemedicine. The flexibilities, which were first put in place during the COVID-19 pandemic, were set to expire at the end of the year, on December 31, 2024. This recently issued extension now extends the flexibilities through December 31, 2025 and marks the third extension of the DEA’s temporary rule. 

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. The DEA’s temporary rule created certain flexibilities to the Ryan Haight Act and was initially put in place in response to the challenges of meeting in person during the height of the COVID-19 pandemic. 

Thus, since the January 31, 2020, declaration of a public health emergency due to the COVID-19 epidemic, eligible practitioners and 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 or her professional practice
• The telemedicine communication is conducted using an audio-visual, real-time, two-way interactive communication system
• The practitioner is acting in accordance with applicable federal and state laws (i.e., the practitioner should be registered with the DEA in at least one state)

As discussed in our earlier client alert, published on March 23, 2023, the DEA announced proposed rules to allow the prescription of controlled substances based on a telehealth consultation in certain limited circumstances. In a November 15, 2024, press release put forth by the DEA, the agency stated that it received more than 38,000 comments to the proposed rules and that it has held two days of public listening sessions. In light of these comments, the DEA is continuing to review and consider a final set of regulations and a “new path forward for telemedicine.” As a result, the DEA, jointly with the HHS, has decided to extend the current telemedicine flexibilities through December 31, 2025. 

According to the DEA and HHS, this third temporary extension will allow adequate time for practitioners and those affected to comply with any new standards or requirements eventually adopted in a final set of regulations. Although this extension with flexibilities to the Ryan Haight Act has been in place, there still has been significant enforcement action related to prescribing controlled substances via telehealth during these previous waiver periods. The DEA has pursued enforcement in stances where, allegedly, a prescription was issued without a legitimate medical purpose or where the method of telemedicine communication was not consistent with the regulation. As a result, it is important that practitioners and providers remain compliant with the extension requirements. In addition, practitioners and digital health companies should stay informed of any further changes to maintain compliance. 

Follow our blog to receive additional updates and alerts on the DEA’s proposed rules regarding extension of the COVID-19 telemedicine flexibilities for the prescription of controlled substance medications.

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