Biden Admin Delays Ending Virtual Prescribing for Controlled Substances

A pharmacy technician counts out a prescription of antibiotic pills in Miami, Florida, on Aug. 7, 2007. (Joe Raedle/Getty Images)

As the COVID-19 public health emergency nears its end, the Biden administration is seeking to extend telehealth flexibilities that allowed doctors to virtually prescribe controlled substances to their patients.

Prescribing controlled substances via telehealth was limited before the COVID-19 pandemic under the Ryan Haight Act, which is a 2008 amendment to the 1970 Controlled Substances Act. The law, in part, requires doctors to see their patients in person before prescribing controlled substances via telehealth.

During the COVID-19 public health emergency, the Drug Enforcement Administration (DEA) temporarily lifted the requirement for doctors to evaluate their patients in person before prescribing the controlled substances. This applied to all schedule II–V controlled substances, and enabled patients to access care amid lockdowns.

In February, the DEA announced proposed rules that would permanently allow certain telehealth flexibilities, but also reinstate some restrictions and introduce some further requirements on telehealth prescriptions.

Specifically, the rules would allow doctors to virtually prescribe to their patients, without requiring an in-person visit, a 30-day supply of “Schedule III–V non-narcotic controlled medications,” as well as a similar supply of “buprenorphine for the treatment of opioid use disorder.”

However, an in-person exam would still be required for the patient to access additional supplies of the drugs. Furthermore, the initial prescription for the drugs would require a special label to note that the prescription was written under the new exemptions allowed by the new rules.

The proposed rules would also eliminate virtual-only prescribing for Schedule II–V narcotic and Schedule II controlled substances, by requiring an in-person exam. Such Schedule II medications include Adderall and Ritalin.

The rules were intended to take effect when the public health emergency is set to end on May 11.

Temporary Extension

But on Wednesday, the DEA said it decided to allow continued virtual prescribing for all controlled substances for now, owing to receiving “a record 38,000 comments on its proposed telemedicine rules.” The comments largely pushed back on the 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,” said DEA Administrator Anne Milgram in a statement on Wednesday.

DEA Administrator Anne Milgram speaks during a news conference at the Justice Department in Washington, on April 14, 2023. (AP Photo/Susan Walsh)

“For this reason, last week, DEA, in concert with the Department of Health and Human Services, submitted a draft Temporary Rule to the Office of Management and Budget entitled ‘Temporary Extension of COVID-19 Telemedicine Flexibilities for Prescription of Controlled Medications.’ Further details about the rule will become public after its full publication in the Federal Register,” she added.

The DEA’s extension provides it more time to consider whether it needs to make further changes to its proposed rules.

Stakeholder groups had spoken out against the DEA’s proposed rules. Such groups include new digital behavioral health providers that facilitated the prescription of these drugs via telehealth. They argued the proposed rules could disrupt care and access to treatment, and also impose administrative burdens.

Some argued that the DEA has not met its obligations under the Ryan Haight Act, which was to create a special telehealth registration process for virtual-only prescriptions of controlled substances. The requirement was reaffirmed later in the SUPPORT Act of 2018. But the DEA has not done so, especially for controlled substances to treat opioid-use disorder.

Those who are in favor of bringing back the in-person requirements have argued that having patients be seen by a doctor in person could help curb their substance abuse.