On November 15, 2024, the DEA in concert with HHS issued a third temporary extension of COVID-19 telehealth flexibilities for the prescribing of controlled medications, to be effective through December 31, 2025. The purpose of the third temporary rule is to ensure a smooth transition for patients and qualified health professionals who have come to rely on the availability of telemedicine for controlled medication prescriptions.
These telemedicine flexibilities, originally granted in March 2020 as part of the COVID-19 Public Health Emergency, authorize qualified health professionals to prescribe Schedule II-V controlled medications via telemedicine, including Schedule III-V narcotic-controlled medications approved by the Food and Drug Administration for the treatment of opioid use disorder via audio-only telemedicine encounters.
The Ryan Haight Online Pharmacy Consumer Protection Act of 2008 governs online prescribing of controlled substances in the US. This law was created to regulate online internet prescriptions, is enforced by the DEA (Drug Enforcement Agency) and also imposes rules around the prescription of controlled substances through telepsychiatry.
- The Act requires any practitioner issuing a prescription for a controlled substance to conduct an in-person medical evaluation (with certain specified exemptions) prior to prescribing controlled substances. Per the Act, the prescribing practitioner is required to have conducted one in-person medical evaluation with the patient and may prescribe via telemedicine thereafter. The occurrence or frequency of additional in-person visits is not mandated under the Ryan Haight Act.
- The Act also describes special circumstances such as “covering practitioners” – “a practitioner who conducts a medical evaluation [by telemedicine] at the request of a practitioner who … has conducted at least 1 in-person medical evaluation of the patient or an evaluation of the patient through the practice of telemedicine within the previous 24 months" – and prescribing within a federal health care system (e.g. Indian Health System; Department of Veteran’s Affairs). Psychiatrists working in federal health care systems should be familiar with their organization’s policy around the telepsychiatric prescribing of controlled substances.
- In addition to complying with the Ryan Haight Act, psychiatrists need to make sure they comply with other federal, state and organizational rules and policies around the prescription of controlled substances. Prior to the temporary flexibilities around these rules, the Centers for Medicare & Medicaid Services (CMS) required annual in-person visits for mental health, subject to exceptions if the risk of in-person care outweighs the clinical benefit, for Medicare patients. CMS also required in-person establishment of Medicare patients prior to providing telemental health, which was not eligible for exceptions.
Additional in-person evaluations, beyond the minimum required by relevant facility, state, and federal policy, was up to clinical discretion. For example, if the practitioner was unable to obtain the data they need for clinical decision-making through telehealth, the practitioner could recommend that a patient be seen in-person.