Foley Telemedicine Attorneys Quoted on DEA PHE Waiver Extension

Foley & Lardner LLP Partners Nathaniel Lacktman, Thomas Ferrante, and Rachel Goodman are quoted in the HealthLeaders article, “DEA Extends Telemedicine Prescription Waivers by 6 Months,” discussing the U.S. Drug Enforcement Agency’s (DEA) decision to extend pandemic-related waivers for the use of telemedicine to prescribe controlled substances.

The temporary rule will extend the full set of telemedicine waivers adopted during the federal public health emergency to expand telehealth access through November 11, 2023. For providers who have set up a telehealth relationship with a patient for the prescription of controlled substances, the waivers will be extended through November 11, 2024.

The extended waiver deadlines followed strong comments from industry stakeholders following the initial release of prescription guidelines in February.

“The proposed rules are intended to bridge between the DEA’s current PHE waivers and a post-PHE environment,” Lacktman wrote in a Health Care Law Today blog in February, which was excerpted in the article. “In so doing, DEA proposed creating two new limited options for telemedicine prescribing of controlled substances without a prior in-person exam. The options [are] both complex and more restrictive than what has been allowed for the past three years under the PHE waivers.”

Ferrante’s and Goodman’s blog on the initial prescription guidelines was also cited, wherein they explained that the waiver of the in-person exam during the PHE ensured that “millions of both established and new patients were able to receive medically necessary prescriptions via telemedicine.”

They added at the time that the DEA’s actions don’t address a key element of the Ryan Haight Act, which requires an in-person exam by a qualified provider before those drugs can be prescribed via telemedicine.

“There have been efforts to amend the Ryan Haight Act and encourage the DEA to activate the telemedicine special registration rule before the PHE expires, including pending federal legislation,” they wrote. “However, to date, the Ryan Haight Act has not been changed and the DEA has not activated the telemedicine special registration rule.”