During the Public Health Emergency, the Drug Enforcement Agency (DEA) and Health and Human Services (HHS) adopted policies to waive the in-person exam requirement for prescribing controlled substances as required by the Ryan Haight Act. This enabled registered DEA practitioners to prescribe Schedule II-V controlled substances to patients without in-person interaction. This action was taken in order to ensure that patients (both established and new) were able to receive medically necessary prescriptions via telemedicine.
At the conclusion of the COVID-19 Public Health Emergency, this flexibility will expire, and the Ryan Haight Act provisions that require an in-person visit for prescribing controlled substances will, once again, be the rule.
Potential Action to Extend
There have been efforts to amend the Ryan Haight Act, and HHS has announced that the DEA is planning to establish rules so that the ability to prescribe controlled substances via telemedicine in certain circumstances would be retained. To do so, the DEA will need to activate a telemedicine special registration rule. Many are hoping this can be achieved prior to the expiration of the Public Health Emergency, slated to end on May 11, 2023. However, to date, pending legislation to amend the Ryan Haight Act has not passed, and the DEA has not activated the telemedicine special registration rule.
As matters currently stand, when the Public Health Emergency expires on May 11th, without further action on the part of the legislature or the DEA, the in-person requirement will revert to being the rule.
This means that, after May 11th, providers will be prohibited from prescribing any controlled substance for any patients for whom only telehealth visits have occurred because the special COVID provisions will have expired. Patients requiring controlled substance prescriptions will need to be seen by an in-person provider.
Point of Awareness for Employers
If DEA action is not formalized to extend the telehealth flexibility rule, participants who are prescribed controlled substances will experience a significant change in the process when filling their prescriptions. Health plan and pharmacy benefits managers will revert to the prior rules, and participants may be caught off-guard by this change in the process. Employers should be aware of this possibility, watch for further updates, and be prepared to communicate to plan participants should the emergency rule not be extended.