On May 3, the Drug Enforcement Administration (DEA) issued a statement from Administrator Anne Milgram on COVID-19 telemedicine flexibilities for prescribing controlled substances in which the DEA noted that it has “decided to extend the current [public health emergency (PHE)] flexibilities while [working] to find a way forward to give Americans that access with appropriate safeguards.” The statement notes that DEA and the Department of Health and Human Services have submitted an as-yet-unpublished temporary rule to the Office of Management and Budget in order to extend these flexibilities beyond next week’s PHE termination date.
This guidance comes after the DEA “received a record 38,000 comments” on two proposed rules (here and here) issued in February to address the prescribing of controlled substances based on a telemedicine encounter after the conclusion of the PHE. During the PHE, providers have been able to prescribe a range of controlled substances, including medications used to treat opioid use disorder (MOUD), via telehealth without an in-person encounter. As drafted, the proposed rules would have required individuals to have an in-person visit to secure a prescription for most controlled substances within a certain time frame after the telemedicine encounter (with limited exceptions). In response to the proposed rules, many stakeholders feared—as articulated in the American Telemedicine Association’s statement—that DEA’s proposals were “more restrictive than is warranted” and would hinder access to care, particularly for individuals with substance use disorder who started treatment during the PHE.
Manatt will be sharing an in-depth analysis on the proposed rules when they are released.
NOTE: To provide quick and actionable guidance on the evolving telehealth landscape, Manatt Health has developed a federal and comprehensive 50-state tracker for telehealth policy, regulatory and legal changes related to the COVID-19 pandemic. To view the executive summary outlining federal and state-level developments, click here. The full tracker with details for each state is available through Manatt on Health, Manatt’s premium information service. For more information, contact Jared Augenstein at jaugenstein@manatt.com.