This week, the Drug Enforcement Administration (“DEA”), in conjunction with the Substance Abuse and Mental Health Services Administration (“SAMHSA”), issued a temporary rule extending the telemedicine waivers of the Ryan Haight Act (“RHA”) promulgated during the COVID-19 Public Health Emergency (“PHE”). This is notable as access to care, including mental health and substance abuse treatment, remains a crucial industry focus, especially as the transition to the post-PHE has begun.

The RHA generally requires a practitioner to perform an in-person medical evaluation prior to the prescribing of controlled substances via telemedicine. The DEA waived this requirement for an in-person medical evaluation during the PHE, as long as certain conditions were met. Under the temporary rule, all of the telemedicine flexibilities regarding the prescription of controlled substances that were in place during the PHE will remain in place for an additional six months (until November 11, 2023).

Additionally, if a patient and a practitioner have established, or will establish, a telemedicine relationship on or before November 11, 2023, all of the telemedicine flexibilities regarding the prescribing of controlled substances in place during the PHE will remain in place for an additional year (until November 11, 2024). A practitioner and a patient have a “telemedicine relationship” if the practitioner has not conducted an in-person medical evaluation of the patient, and has prescribed one or more controlled substances to the patient pursuant to certain telemedicine flexibilities under the PHE waiver or the temporary rule.

As described in a previous update, the DEA proposed a rule in March 2023 to extend some flexibilities while making permanent certain scenarios in which a practitioner could prescribe controlled substances without a prior in-person evaluation. After a record 34,000+ comments were received in response to the proposed rule, the DEA issued this temporary rule to promote continued access to care, ensure a smooth transition, and give practitioners sufficient time to come into compliance with the requirements of the final rule.

Practitioners should carefully monitor for both federal and state law updates, as state law may impose different and potentially more stringent requirements. Our team will continue to track developments and provide updates as they arise. Practitioners with questions or seeking counsel can contact any member of our Healthcare Team for assistance.