Telehealth Prescribing & COVID-19: DEA Eases Requirements for Prescribing Controlled Substances

As the national and state health care system moves to prevent the spread of COVID-19, providers are expanding their reliance on telehealth services on nearly every front. For prescribers seeing more patients using newly approved and previously used technologies, it's important to remember that the prescribing requirements still apply. In addition, there are some changes to be aware of due to the COVID-19 public health emergency.

Controlled Substance Prescribing

On March 16, 2020, the Drug Enforcement Agency (DEA) announced that the public emergency exception to its telehealth prescribing requirements for controlled substances is activated. During the COVID-19 public health emergency, DEA is allowing prescriptions for controlled substances to be written based on a telemedicine visit, without requiring a prior in-person session between the prescriber and the patient.

Typically DEA prohibits controlled substances to be prescribed as a result of a telemedicine visit unless there has been a prior in-person visit to establish a patient-prescriber relationship. While a valid patient-prescriber relationship is still required, for the duration of the public health emergency relationships established via telemedicine are acceptable for DEA's purposes in regulating controlled substance prescribing.

The Ryan Haight Act is the source of the federal prohibition against controlled substance prescribing via telemedicine. The statute does contain exceptions, including the public health emergency exception that allows for DEA's position. (The additional exceptions in the Act that are directly for telemedicine are not able to be used because DEA has not yet issued the necessary regulations.) In the meantime, and only during the current emergency, prescribers may prescribe controlled substances based on initial telemedicine visits.

Additional requirements include:

• The telemedicine visit must be conducted using an audio-visual, two-way interactive technology.
• The prescriber must be registered with the DEA and have the valid licenses necessary for the activity in which they are engaged.
• The prescription must be within the prescriber's scope of practice and issued pursuant to a valid patient-prescriber relationship.
• The prescriber is acting in compliance with applicable state and federal laws.

It is expected that this eased restriction will end as soon as the public health emergency ends, so prescribers will need to monitor this issue for changes. DEA presents this as an FAQ posted on its website at https://www.deadiversion.usdoj.gov/coronavirus.html.

Remember to Comply With the Applicable State Laws

In that moment of excitement about being able to help patients without making them arrive in person, remember that states can have rules that are stricter than DEA. In this regard, the states also regulate the issuance of prescriptions through telemedicine visits. While the trend in recent years has been toward allowing creation of a valid prescriber-patient relationship via telemedicine technologies, there are state-specific variations.

Similarly, some states may immediately adopt DEA's perspective for controlled substance prescribing, and others may not. If the state where the patient is located, or the state where the prescriber is located, prohibits the issuance of a controlled substance prescription as a result of the telemedicine encounter, then it is possible that the prescription would not be valid.

As a result, it is critical for facilities, prescribers, and pharmacies to understand what is allowed, where it allowed, and the scope of the permissions to ensure that the prescriptions written and dispensed are valid.

As the COVID-19 situation continues to unfold, we are continuously monitoring updates and are here to help. For more information, contact your Quarles & Brady attorney or:

• Katea M. Ravega: (317) 399-2849 / katea.ravega@quarles.com