End of public health emergency will limit telehealth prescribing of controlled medications

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In February 2023 the Drug Enforcement Administration (DEA) proposed new rules for telemedicine that, if accepted, will change how many patients have received care since 2020, when the agency issued a public health emergency (PHE) at the start of the COVID-19 pandemic. Provisions accompanying that emergency declaration enabled telehealth practitioners to issue prescriptions for Schedule II-V drugs without an in-person patient evaluation. These provisions will end on May 11 when the public PHE expires.

As part of the proposed new rules, telehealth patients who have never had an in-person evaluation with their practitioner can be virtually prescribed a 30-day supply of a Schedule III-V controlled medication. After that, patients will need to see a doctor in person to renew the prescription.

Significantly, telemedicine practitioners will only be able to issue initial prescriptions of Schedule II controlled medications to patients who first undergo an in-person evaluation (this could be with the telehealth practitioner themselves or another physician). Future renewals of the medication then can be prescribed virtually.

While the new rules won’t have a dramatic impact on the telemedicine physician-patient relationship, both parties can expect an adjustment period as patients look to secure in-person appointments (so their prescriptions are not interrupted) and physicians extend a show of support to patients who may be seeking in-person primary care for the first time.

Here’s a quick review of the DEA’s push to establish better patient care nationwide; questions raised by these proposed rules; and how doctors can aid in their adoption.

Firmer safeguards for fuller-picture care

In many ways, the PHE declaration in January 2020 rolled back statues of the 2008 Ryan Haight Act, which prohibits prescription of controlled substances (CS) via telehealth appointments without an in-person evaluation. That legislation—a response to the accidental hydrocodone overdose death of an 18-year-old who was prescribed the CS during a virtual visit—highlights the vulnerabilities of telemedicine that we’ve seen surface again under the latest PHE exemptions.

There's no question that the DEA’s flexibility and expansion of telehealth services during the pandemic has radically improved Americans’ access to care, especially where care didn’t exist—such as in the 75% of rural counties experiencing a shortage of mental health professionals. But the ease of access to online prescriptions is balanced by new indications that telehealth services enable use of medications in unintended ways, and for scripts to be written when they shouldn’t. For Schedule II substances specifically—those the federal government says carry the most potential for abuse (e.g., Vicodin, OxyContin, Ritalin and Adderall)—the DEA’s new restrictions signal intent to slow the increased prescription drug abuse of the last few years.

One of the benefits of expanded telehealth services has been that physicians can prescribe controlled substances to patients across state lines. With this provision removed come May 11, we are likely to see more patients seeking in-person evaluations closer to home. It’s possible that some of these new patients will book in-person examinations through urgent care facilities. But others are likely to become new patients of a primary care physician (PCP).

What can practitioners do now?
Telehealth practitioners can support their patients in many ways during this transition period to ensure seamless, continued care. Simply calling patients ahead of a telehealth visit and apprising them of the new procedure, so the patient knows what to expect, can reduce their chances of a lapse in prescriptions. Both telehealth and in-person physician teams should ensure that appointments are scheduled for the appropriate amount of time.

Telemedicine physician-patient relationships formed during the COVID-19 emergency will retain exemption status for 180 days after the PHE ends, giving patients a grace period in which to secure in-person physician visits if necessary to maintain their prescriptions. However, it’s best to encourage patients to begin the appointment booking or new-patient sign-up process now and not bank on the 180-day grace period making it into the final approved list of regulations.

Practitioners should expect an influx of patients they will need to accommodate in person. Clinics should adjust physician schedules accordingly—especially in rural areas where telehealth has been filling a care gap.

Questions, potential challenges and the future of telehealth

Many questions remain about the proposals in their current form. For example, the proposed rule regarding “qualifying telemedicine referrals” specifies that a telehealth practitioner (the “prescribing practitioner”) can refer a patient to another physician for an in-person evaluation as well as a referral prescription, so the patient can continue on their medication without interruption. The in-person doctor (the “referring practitioner”) will then return the referral prescription to the telehealth practitioner, who will manage the prescription henceforth.

What the rule doesn’t specify is whether in-person referral prescriptions must come from a PCP or if they can be issued by any doctor (such as urgent care facility staff). The difference for the patient, of course, might mean out-of-pocket expense (with urgent care) versus establishing a primary care relationship through an insurer—if the patient has medical coverage.

Time will tell how patients balance virtual and in-person visits to meet their care needs. The consensus within the medical community is that telemedicine is here to stay. Patients consistently rate their virtual doctor’s visits as positive experiences. The Covid Healthcare Coalition recently released a study of 2,000 patients who had at least one telehealth appointment during the pandemic in which nearly 80% expressed satisfaction with their visit. Significantly, just under 75% said they intended to continue with virtual care services after the pandemic.

As PCPs prepare to comply with the DEA’s forthcoming regulations, and patients re-adjust to traveling for health care services, it’s worth remembering the end goal of these rules: for more patients to establish a better care network. It’s up to us, the physicians and pharmacists, to ensure we are adapting in ways that best serve patients’ needs. One measure of our success will be the number of patients we “get in the door” for consultations and examinations in the months ahead, either face-to-face or online.

Reema Hammoud, PharmD, is associate vice president, clinical pharmacy for Sedgwick.