On Tuesday May 9, 2023, the Drug Enforcement Administration (“DEA”), jointly with the Substance Abuse and Mental Health Services Administration (“SAMHSA”), announced that it will publish a rule to temporarily extend current telemedicine flexibilities for prescribing controlled substances beyond the termination of the Federal Public Health Emergency (“PHE”), which will occur on May 11, 2023 (the “Temporary Rule”).
- Notably, the Temporary Rule, which can be accessed here, extends the COVID-19 PHE telemedicine flexibilities (hereinafter, “telemedicine flexibilities”) for six months following the end of the PHE (through November 11, 2023).
- The Temporary Rule also permits the continued reliance on those telemedicine flexibilities for an additional 12-month grace period thereafter for any practitioner-patient telemedicine relationship established on or before November 11, 2023. As a result, if a patient and a practitioner have appropriately established a telemedicine relationship on or before November 11, 2023, the same telemedicine flexibilities that have governed the relationship to that point will continue to be permitted until November 11, 2024. However, these extended telemedicine flexibilities will not be available or applicable to any practitioner-patient relationships established after November 11, 2023.
The DEA received more than 38,000 public comments in response to its proposed final rules for telemedicine prescribing of controlled substances published on February 24, 2023. A discussion of the proposed final rules (the “Proposed Final Rules”), which are considerably different than the DEA’s current telemedicine flexibilities, can be accessed here. The Temporary Rule will not only allow the DEA additional time to evaluate the comments to the Proposed Final Rules but will also provide telemedicine providers more time to consider these Proposed Final Rules to ensure a smooth transition for patients and practitioners that have come to rely on the current telemedicine flexibilities.
Practical Takeaways
- Telemedicine providers relying on the current DEA telemedicine flexibilities can breathe a bit easier for the time being, as the Temporary Rule provides some much-needed clarity around the continued use of telemedicine to prescribe controlled substances as the PHE winds down.
- Still, telemedicine providers should closely monitor for the DEA’s final rules, once they are issued. The Proposed Final Rules, while still subject to modification based upon the comments received, are vastly different than the current telemedicine flexibilities to effectively prepare for these anticipated changes.
- Even while utilizing the Temporary Rule, and the additional grace period it offers, telemedicine providers should be mindful of the particular elements of the Temporary Rule and ensure documented compliance with the same.
For more information about the Temporary Rule, please contact:
- Chris Eades at (317) 977-1460 or ceades@hallrender.com;
- Todd Nova at (414) 721-0464 or tnova@hallrender.com;
- Mayo Alao at (317) 977-1480 or malao@hallrender.com or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
