DEA Extends Telemedicine Prescribing Flexibilities Through 2025

As expected, The Drug Enforcement Administration (DEA) published a new regulation on November 19, 2024, that temporarily extends the COVID-era flexibilities for prescribing controlled substances via telemedicine. This is the third extension of the pre-pandemic rules and means that the COVID-era flexibilities that have been in place since March 2020 will continue until at least December 31, 2025. 

What does that mean for you? 

Under the latest extension, practitioners may continue to:

1. Prescribe Schedule II-V controlled substances via telemedicine without a prior in-person evaluation of their patients, if certain conditions are met; and

2. Maintain a DEA registration in at least one state.

Before this most recent extension, the telemedicine flexibilities were set to expire at the end of 2024. 

The DEA primarily pointed to the “telehealth cliff” as one of the primary reasons for continuing the flexibilities. The telehealth cliff is the term used by many healthcare industry stakeholders to refer generally to what is expected to happen if the flexibilities abruptly end, requiring in-person care for a wide swath of providers and patients. Without a plan to address the return to the in-person requirement, the telehealth cliff would disrupt access to care, and potentially harm patients who rely on telemedicine for their medications.

The extension is limited to one year to prevent disreputable companies from popping up and taking advantage of the temporary flexibilities for improper prescribing practices. It also buys time for the DEA to solidify new, more permanent regulations to address the ending of the flexibilities to avoid the telehealth cliff. The DEA states that they will issue the final regulations with enough time for practitioners to comply with the new rule well before December 31, 2025 (thus avoiding any cliff).

However, the DEA continues its pattern of blowing past self-assigned deadlines on this issue. 

A Brief Recap

The Ryan Haight Act introduced amendments to the Controlled Substances Act, which limited clinicians' ability to prescribe controlled substances without first conducting an in-person exam. Additionally, the Controlled Substances Act requires clinicians to obtain a DEA registration in each state where their patients reside. When the Ryan Haight Act was passed in 2008, Congress expected the DEA to establish a special registration rule for telemedicine clinics soon after. However, years passed without action, leading Congress and the White House to enact the SUPPORT Act of 2018, which required the DEA to issue the rule by October 2019. Close to seven years later, and going on eighteen years after the initial mandate from Congress, the DEA has still not released a telemedicine exception process.

During the COVID-19 Public Health Emergency (PHE), the DEA introduced temporary measures allowing clinicians to prescribe controlled substances without requiring in-person exams and only needing a single-state DEA registration. In February 2023, two months before the PHE’s end, the DEA proposed a new rule regarding telemedicine prescribing, but it faced widespread criticism. The proposal attracted a record 38,000 public comments, nearly all critical, with objections focusing on its lack of alignment with how healthcare services are actually delivered. In response to this backlash, the DEA withdrew the proposal and extended the COVID-era flexibilities twice—first in May 2023, then in October 2023. These extensions were intended to give the DEA additional time to create a feasible rule for telemedicine prescribing of controlled substances. But as we’ve seen, they need additional time to come up with a final rule that would seek to balance the prevention of controlled substance abuse with giving well-intentioned providers (and their patients) the freedom and convenience that telemedicine allows. 

Conclusion

We will continue to monitor the rule development and provide updates. Be sure to subscribe to Functional Lawyer on social media and email to stay current on these ever-changing rules. 

Further Reading

DEA Regulation published November 19, 2024

DEA Letter dated March 31, 2020

DEA Letter dated March 25, 2020