On October 10th, the Department of Health and Human Services (HHS) jointly with the Drug Enforcement Administration (DEA) published a second temporary rule extending the full set of telemedicine flexibilities applicable to prescribing controlled substances that were initiated during the Covid-19 public health emergency. The telemedicine flexibilities will remain in place through December 31, 2024, where the previous temporary rule for new practitioner-patient relationships was set to expire on November 11, 2023.
The DEA and HHS issued the extensions as a result of the need to further evaluate the approximately 38,000 comments received and the information gathered during the Telemedicine Listening Sessions that occurred in early September in response to the DEA’s Proposed Rules for telehealth prescribing released earlier this year. These rules, if enacted as written, would have significantly limited the ability to prescribe controlled substances through telemedicine. Specifically, the Proposed Rules would limit prescribing controlled medications without an in-person patient evaluation by only allowing for a 30-day supply of schedule III-V non-narcotic controlled medications or buprenorphine for the treatment of opioid use disorder.
The DEA’s Administrator previously emphasized that the “DEA is committed to the expansion of telemedicine with guardrails that prevent the online overprescribing of controlled medications that cause harm.” This second extension demonstrates this interest, but does not guarantee that DEA’s final rules will be significantly more flexible than the Proposed Rules. Accordingly, while this temporary rule extends telemedicine prescribing flexibilities through 2024, providers must stay up to date on DEA’s final rule. Additionally, providers who are availing themselves of this flexibility must ensure their overall compliance with rules related to telehealth generally, including prescribing, as an increase in scrutiny, audit, and investigation to combat fraud and abuse should be anticipated.
How Frier Levitt Can Help
Frier Levitt continues to monitor new and proposed telehealth legislation affecting providers post-pandemic now that the majority of waivers have expired and temporary extensions have begun to wind down. Frier Levitt attorneys regularly advise providers, marketers, and administrative and technology companies on developing and restructuring telehealth business models to comply with applicable law while considering obstacles related to prescribing, licensing, and insurance reimbursement concerns that are unique to each arrangement. If you are seeking to Launch a Telemedicine Practice or Telehealth Startup or want to ensure your compliance in an existing model, contact us to speak to an experienced telehealth attorney who can comprehensively evaluate and recommend a compliant, sustainable model.
