The Drug Enforcement Administration (“DEA”) has published its long awaited rules on prescriptions of controlled substances via telehealth after the end of the COVID-19 Public Health Emergency (“PHE”).

Federal law prohibits the prescription of controlled substances without an in-patient visit unless an exception, such as an established patient relationship, applies. During the PHE, the DEA granted a waiver to allow providers to establish a patient relationship and prescribe controlled substances via a synchronous, audio-visual visit. This waiver allowed patients to access care during the PHE.  With the PHE set to expire on May 11, 2023, patients and providers have been anxiously awaiting the rules governing post-Pandemic telehealth prescription of controlled substances.

The proposed rules apply to medical providers who have never conducted an in-person evaluation of a patient and who, after a telehealth visit, prescribe controlled substances. The proposed rules would allow such providers to prescribe a 30-day supply of a Schedule III-V non-narcotic controlled substance and/or a 30-day supply of buprenorphine for the treatment of opioid use disorder based on a synchronous, audio-visual visit. These 30-day prescriptions could not be renewed without an in-person examination, conducted either by the prescribing provider or another provider, who could thereafter refer the patient to the telehealth provider for treatment.  In addition, the proposed rules would allow telehealth providers who have established relationships with patients during the PHE to continue prescribing controlled medications for these patients for 180 days after the effective date of the rules or the expiration of the PHE, whichever is later.  After expiration of the 180 day period, an in-patient evaluation would be required for continued prescription of controlled substances.

In a press release announcing the proposed rules, DEA Administrator Anne Milgram stated:

The permanent expansion of telemedicine flexibilities would continue greater access to care for patients across the country, while ensuring the safety of patients. DEA is committed to the expansion of telemedicine with guardrails that prevent the online overprescribing of controlled medications that can cause harm.

The DEA’s press release also emphasized that the proposed rules do not affect: telemedicine consultations that do not involve the prescribing of controlled medications; telemedicine consultations by a provider who has previously conducted an in-person medical examination of a patient; or telemedicine consultations and prescriptions by a provider to whom a patient has been referred by a provider who has previously conducted an in-person medical examination.

Comments on the proposed rules are due by March 31, 2023.

The attorneys at Whatley Kallas, LLP will continue to follow the proposed rules as they are finalized and implemented.

The DEA’s press release is linked here. The proposed rules governing telemedicine prescription of controlled substances are linked here and the proposed rules governing the prescription of buprenorphine are linked here.

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