October 2023 Update: On October 6, 2023, DEA and HHS announced the second temporary extension of flexibilities around telemedicine prescribing of controlled substances from the COVID-19 public health emergency (PHE). This additional extension will allow time for the DEA to comprehensively review and incorporate the more than 38,000 comments received on the two companion proposed rules they released in March 2023, detailed below.
The emergency flexibilities will be extended in full until December 31, 2024. These flexibilities include:
- Patients can be prescribed schedules II-V controlled substances without a prior in-person examination as clinically appropriate and within your normal scope of practice.
- DEA registration in one state allows prescription of controlled substances in any state.
You can read more about this update in Psych News. We will share more information as it comes available.
The Ryan Haight Online Pharmacy Consumer Protection Act of 2008 was created to regulate online internet prescriptions, is enforced by the DEA (Drug Enforcement Agency) and also imposes rules around the prescription of controlled substances through telepsychiatry.
- The Act requires any practitioner issuing a prescription for a controlled substance to conduct an in-person medical evaluation (with certain specified exemptions) prior to prescribing controlled substances. Per the Act, the prescribing practitioner is required to have conducted one in-person medical evaluation with the patient and may prescribe via telemedicine thereafter. The occurrence or frequency of additional in-person visits is not mandated under the Ryan Haight Act.
- The Act also describes special circumstances such as “covering practitioners” – “a practitioner who conducts a medical evaluation [by telemedicine] at the request of a practitioner who … has conducted at least 1 in-person medical evaluation of the patient or an evaluation of the patient through the practice of telemedicine within the previous 24 months" – and prescribing within a federal health care system (e.g. Indian Health System; Department of Veteran’s Affairs). Psychiatrists working in federal health care systems should be familiar with their organization’s policy around the telepsychiatric prescribing of controlled substances.
- In addition to complying with the Ryan Haight Act, psychiatrists need to make sure they comply with other federal, state and organizational rules and policies around the prescription of controlled substances. As of December 2022, the Centers for Medicare & Medicaid Services (CMS) requires annual in-person visits for mental health, subject to exceptions if the risk of in-person care outweighs the clinical benefit, for Medicare patients. CMS also requires in-person establishment of Medicare patients prior to providing telemental health, which is not eligible for exceptions.
Additional in-person evaluations, beyond the minimum required by relevant facility, state, and federal policy, is up to clinical discretion. For example, if the practitioner is unable to obtain the data they need for clinical decision-making through telehealth, the practitioner may recommend that a patient be seen in-person.