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May 12, 2023

DEA Submits Draft Rule for Temporary Extension of COVID-19 Telemedicine Flexibilities

Beginning on March 16, 2020, the DEA permitted DEA-registered practitioners to use telemedicine to prescribe all schedule II-IV controlled substances for patients after the public health emergency was declared. The public health emergency ended on May 11, 2023, and there are significant concerns regarding changes to telemedicine across healthcare. On February 24, 2023, the DEA announced proposed rules to extend many, but not all, of the flexibilities permitted during the public health emergency. Generally speaking, the proposed rule would restrict a provider using telemedicine to prescribing only a 30-day supply. Furthermore, the proposed rule suggests that the provider would only be allowed to write multiple prescriptions for the patient in a quantity “less than or equal to a total quantity of a 30-day supply of the controlled medication.” In order to continue treating the patient after this, the provider would be required to see the patient in person with no option for telemedicine appointments at that point. 

The proposed rules received a record 38,000 comments, which prompted further response from the DEA Administrator. This comes as a result of “major backlash” received during the comment period for the rules “that, according to one commentator article, ‘would reestablish austere restrictions on accessing treatment via telehealth that includes a controlled substance such as buprenorphine for opioid use disorder (OUD) or Adderall for ADHD.’” Many opponents of the rule argued that it “would severely limit care provided to patients whose care includes controlled substances without first seeing a provider in person.”  On May 3, 2023, the DEA Administrator, Anne Milgram, put out a statement regarding the end of the federal public health emergency and its implications for telehealth flexibilities for prescribing controlled substances. And on May 10, the DEA published a temporary rule to extend the existing flexibilities as the agency works with HHS to address how to maintain access to needed medications while providing reasonable safeguards. The rule, effective on May 11, 2023, extends the full set of telehealth flexibilities until November 11, 2023. Under the temporary rule, DEA registered physicians can continue to prescribe federally controlled substances via telehealth without conducting an in person examination to both new and established patients until November 11, 2023. After this date, physicians will be allowed to prescribe federally controlled substances via telehealth without conducting an in person visit to only established patients until November 11, 2024. 

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