DEA Poised to Extend Telehealth Prescribing Rules for 3rd Time

The Drug Enforcement Administration is expected to extend its pandemic-era telehealth prescribing rules for a third time. The DEA sent a rule titled third temporary extension of pandemic-era telehealth prescribing rules to the White House for review prior to making them public. It remains to be seen if the rule will be advanced any time soon given the sensitivity and controversy over the guardrails for telehealth prescribing of controlled substances.  Because the text of the new rule will not be publicly available until it clears the review process, it is unclear how long such an extension would be and whether there are any limitations on the extension. A third temporary extension of the rules would maintain the existing flexibilities allowing telemedicine companies to continue prescribing schedule II-V controlled substances without requiring an in-person visit for a patient. Barring any end of the year legislative package addressing telehealth prescribing, this pending rule extension would likely punt the decision about any permanent DEA-proposed rulemaking into next year to be conducted by a new administration.

For background, here is a timeline of how telehealth prescribing rules have evolved in the past four years:

  • 2020: The Trump administration allowed providers to prescribe Schedule II-V controlled substances via telehealth.
  • March 1, 2023: The DEA published a notice of proposed rulemaking (NPRM). This is considered the first DEA telemedicine rule. That rule pulled back COVID-era remote prescribing flexibility and faced immediate objections from telehealth providers and advocates.
  • May 10, 2023: The DEA extended pandemic prescribing flexibilities for six months, to November 2023. This is considered the first extension.
  • May 11, 2023: The federal public health emergency ended. Two days before, on May 9, 2023, the DEA extended telehealth prescribing flexibilities for six months.
  • September 12-13: The DEA held public listening sessions to discuss the merits of a special telemedicine registration system.
  • October 10, 2023 - DEA did a second extension of pandemic telemedicine prescribing flexibilities through the end of 2024.
  • June 14, 2024: The DEA’s second notice of proposed rulemaking went to the OMB. This is considered the second proposed rule. It has not been officially proposed to the public.
  • August 28, 2024: A former DEA official leaked some of the big-ticket items included in the DEA’s second proposed rule. The rule remains at OMB and has not been proposed to the public. Sources said HHS was not happy with the rule.
  • October 10, 2024: The DEA’s third temporary extension of pandemic prescribing flexibilities went to the OMB. It has not yet cleared OMB.