DEA allows telehealth flexibilities to continue through at least November

Some healthcare providers and telehealth advocates are breathing a sigh of relief.

Kyle Zebley of the American Telemedicine Association hopes the DEA reconsiders plans to restrict some remote prescriptions. (Photo: Ron Southwick)

The Drug Enforcement Administration has agreed to continue some telehealth flexibilities that have been in place throughout the COVID-19 pandemic. Those flexibilities will continue for at least six more months, and in some cases, through most of 2024.

The DEA had proposed some rules restricting the remote prescriptions of certain medications which were to take effect when the federal government Public Health Emergency designation ends May 11.

The DEA issued a statement May 3 saying it is putting the brakes on its plans and will allow the remote prescription of controlled substances to continue for the time being. The agency said it received “a record 38,000 comments on its proposed telemedicine rules.”

“We recognize the importance of telemedicine in providing Americans with access to needed medications, and we have decided to extend the current flexibilities while we work to find a way forward to give Americans that access with appropriate safeguards,” the DEA said.

The DEA initially didn't specify the length of the extension, but now there is more clarity. The full set of telemedicine flexibilities will remain in place through Nov. 11, 2023, the DEA and the Substance Abuse and Mental Health Services Administration announced Tuesday.

In some cases, those flexibilities will remain in place longer. If a patient and a practitioner have established a telemedicine relationship on or before Nov. 11, 2023, the flexibilities will be permitted to continue until November 11, 2024, the federal agencies say.

The American Telemedicine Association and its political advocacy group, ATA Action, have been pressing the Biden administration to reconsider its stance. Critics said the DEA’s plan would hurt access for patients with mental health needs and substance use disorder.

• Read more: Where telehealth can help patients and providers avoid in-person care

The groups welcomed the prospect of the DEA’s extension, said Kyle Zebley, senior vice president of public policy for the ATA and executive director of ATA Action.

“We are very glad that the DEA did do what it did in announcing this extension," Zebley said in a phone interview with Chief Healthcare Executive® last week. "I think it’s a good thing. They shouldn’t rush and they should make sure the American people have access to clinically appropriate care.”

After the DEA issued more details on the extension Tuesday, Zebley said in a statement, “It is especially important and encouraging that these actions cover access to clinically appropriate prescriptions of controlled substances that patients need for a wide variety of medical circumstances, including for mental health and substance use disorders."

Telemedicine advocates had welcomed the initial news of an extension on flexibilities last week, but there was concern when the length of the extension wasn't immediately clear. Now, they have answers on the extension, but the ATA is hoping to see policies that ensure patients have access to medications via virtual appointments.

“We are hopeful that during this extension period, the DEA will revise the draft rules to address unnecessarily restrictive barriers to equitable and appropriate clinical care, such as mandating in-person visits," Zebley said in a statement Tuesday.

Under the DEA's proposal, doctors would have needed to see a patient in person before prescribing some drugs such as Vicodin, OxyContin and Adderall. Patients could get refills via virtual visits, under the DEA's plan.

Doctors could have remotely prescribe a 30-day supply of Schedule III-V non-narcotic controlled medications, such as Xanax or Valium, as well as a 30-day supply of buprenorphine for the treatment of opioid use disorder. After that 30-day period, patients would need an in-person evaluation for another prescription, under the DEA’s earlier guidelines.

The DEA had said it wanted to strike a balance between access and safety. DEA Administrator Anne Milgram said in February that the agency is committed to “the expansion of telemedicine with guardrails that prevent the online overprescribing of controlled medications that can cause harm.”

Still, the ATA and other healthcare advocates said the DEA's proposals would have added hurdles that could potentially make it more difficult for patients to get the treatment they need. Advocates also argued that there is a growing number of patients who won't seek treatments in person.

"I’m glad to see the delay and the extension," Zebley said. "I’m heartened they are going to go through those comments in a thoughtful way to adjust the rules."

The volume of responses on the DEA's policy and the high profile of some of the healthcare advocates likely played a role in the DEA's decision to hold off on its plans, Zebley said. He also credited the DEA for hearing those voices, noting an agency representative listened to concerns at the ATA's recent convention.

"I think we were as loud as anybody in lifting up the voices of our members and the patients they are serving," Zebley said.

In late March, the American Hospital Association urged the DEA to establish a special registration process to waive in-person evaluations for providers who register with the agency. The hospital association called on the DEA to continue to allow flexibilities in remote prescriptions that providers have used throughout the pandemic.

“We are concerned that these limits are arbitrary, unnecessarily burdensome, and will reduce access to critical care,” the AHA said in a statement. “In addition, while some patients may benefit from a periodic in-person evaluation, the need for in-person evaluation should be left to clinical judgment, rather than enforced through a general requirement that ignores case-by-case needs.”

Kate Steinle is the chief clinical officer of FOLX Health, which offers treatment for anxiety, depression and trauma from clinicians who specialize in mental health for LGBTQ+ patients. Steinle participated in a discussion on mental health and telehealth at the ViVE digital health conference and raised concerns about the DEA’s proposed restrictions on some remote prescriptions.

The rules could make it harder for people to get prescriptions they need, said Steinle.

“Look at the data and clinical safety that we now have for the last three years in the care we give through telehealth and use that,” Steinle said.

Congress approved a two-year extension for most telehealth waivers in a $1.7 trillion spending package in December, ensuring providers could continue telehealth services through the end of 2024. The extension also covered hospital-at-home programs. Healthcare advocates are pushing for permanent telehealth reforms.

(Editor's note: This story has been updated with information on the length of the extension of telehealth flexibilities.)