March 20, 2023
The U.S. Drug Enforcement Administration (DEA) recently issued two proposed regulations that permanently extend many telemedicine flexibilities adopted during the COVID-19 public health emergency.
DEA had issued broad waivers during the COVID-19 emergency to allow for the use of telehealth to prescribe controlled substances even for initial encounters.
The proposed rules – developed with the U.S. Department of Health and Human Services and in close coordination with the U.S. Department of Veterans Affairs – would allow continued use of telehealth to prescribe controlled substances in cases where patients have never been treated in-person by the prescriber before, with safeguards described below.
In one of the regulations, DEA is proposing to continue allowing the use of telehealth to initially prescribe buprenorphine for the treatment of opioid use disorder. If allowed by state law, a physician or other practitioner would be allowed to prescribe buprenorphine after an audio-video telehealth encounter or an audio only (phone) visit.
DEA is also proposing through a second regulation to allow similar telehealth flexibilities for non-narcotic schedule III-V controlled medications. DEA is specifically proposing to allow physicians and other practitioners with an active DEA registration to initially prescribe non-narcotic schedule III-V controlled medications via telehealth without a prior in-person visit. For these medications, “telehealth” would be defined as an audio-visual encounter.
Under both regulations, the DEA is proposing a prescription limit of 30 days, after which an in-person examination is required in order to receive refills.
It is important to note that under these regulations DEA would no longer allow telehealth for initial prescriptions for narcotics (with the exception of buprenorphine) or schedule II medications.
Additionally, before prescribing buprenorphine or non-narcotic schedule III-V controlled medications via telehealth, physicians must consult a prescription drug monitoring program (PDMP). If they are unable to consult a PDMP for some reason, they can only prescribe up to seven days’ worth of medication until they are able to consult the PDMP.
If a patient established a virtual relationship with a physician or other health care practitioner during the COVID-19 public health emergency and received a controlled substance prescription via telehealth during that time, DEA is allowing for a period of 180 days from the issuance of the final regulation for the patient to receive an in-person visit.
If a prescriber has seen a patient in-person at any time in the past for any treatment, that patient is not limited by the initial in-person requirement for narcotic/schedule II prescriptions or the 30-day limit for schedule III-V prescriptions.
The full text of the proposals may be found here and here. DEA is seeking comment on these proposed regulations through March 31.
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