Telehealth Flexibilities for Controlled Substances Temporarily Extended
Prior to the Covid-19 pandemic, many strict rules limited the ability to provide services via telehealth. When the pandemic made it very difficult to provide access to in-person care, state and federal agencies introduced flexibilities so that patients could retain access to care. Now that the public health emergency has ended, regulators will face difficult questions about which telehealth flexibilities to retain. On the one hand, both health care providers and patients have come to rely on telehealth for convenient access to care. On the other hand, some limitations may be needed to protect quality and limit potential for abuse.
An especially difficult question is, when can a practitioner prescribe a controlled substance to a patient whom the practitioner has never seen in person. The Ryan Haight Online Pharmacy Consumer Protection Act of 2008 provides that, with limited exceptions, a practitioner could prescribe controlled substances only after conducting an in-person examination of the patient. During the pandemic, the Drug Enforcement Administration (DEA) created temporary exceptions so that practitioners could prescribe Schedule II-V controlled medications via audio-video telemedicine encounters, without requiring an in-person medical evaluation. Also, practitioners could prescribe medications approved for treatment of opioid use disorders via audio-only telemedicine encounters.
The DEA, along with the Substance Abuse and Mental Health Services Administration (SAMHSA), published temporary rules on May 10, 2023, allowing telehealth flexibilities to remain in place for a limited time. Under the temporary rules, the telemedicine flexibilities on prescription of controlled medications will remain in place through November 11, 2023. Also, if a patient and practitioner established a telemedicine treatment relationship prior to November 11, 2023, the flexibilities will remain in place for a one-year grace period ending November 11, 2024.
Prescriptions for controlled substances without an in-person evaluation are permitted only for a legitimate medical purpose, and pursuant to communication between the practitioner and patient using an interactive telecommunications system meeting the requirements established in DEA regulations. These requirements permit use of audio and video equipment permitting two-way, real-time interactive communication; or, for treatment of a mental health disorder (including but not limited to prescriptions of buprenorphine for opioid use disorder), two-way real-time audio-only telecommunications if the patient is not capable of, or does not consent to, use of video technology.
The DEA and SAMHSA plan to issue final regulations defining when telemedicine prescribing of controlled substances is permitted, which will supersede these temporary rules.
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