Update: Federal and State Agencies Release Telehealth-Related Updates

Following the telehealth boom initiated by the COVID-19 pandemic, agencies continue to contend with competing interests in the telehealth space. Current legislation on both state and federal levels indicates that while these agencies seek to chart a path forward, determining the balance between the unique flexibilities allowed for during the pandemic and the public’s interests and health needs today remains in flux. This post is a follow up to Bradley’s previous article concerning the DEA’s proposed rule on telehealth to prescribe controlled substances.

DEA Expected to Extend Telehealth Flexibilities for Third Time

On October 10, 2024, the U.S. Drug Enforcement Agency (DEA) submitted a proposed rule titled the “Third Temporary Extension of COVID-19 Telemedicine Flexibilities for Prescription of Controlled Medications,” the specifics of which have not yet been released. However, stakeholders expect that this will entail the DEA’s third extension of telemedicine flexibilities, where the flexibilities initiated by the COVID-19 public health emergency were extended first on May 10, 2023, through November 11, 2023, and again on October 6, 2023, through December 31, 2024.

As December approaches, the full reinstatement of the in-person requirement to obtain a prescription for a controlled substance as required under the Ryan Haight Act appears unlikely, but how the DEA will chart a path forward remains unpredictable. The DEA continues to face significant pressure from stakeholders, including Congress, to finalize its telehealth rules related to prescribing controlled substances.

Texas Medical Board Proposes Amending Licensure Requirements to Provide Telehealth 

On September 27, 2024, the Texas Medical Board (TMB) released a proposed rules requirement that a physician providing telehealth in Texas hold a full Texas medical license, although grandfathering in those with an out-of-state telehealth license issued on or before September 1, 2022. The proposed rules also seek to add a new rule concerning prescribing for chronic pain, requiring that a physician utilize audio and video two-way communication unless the patient (1) is already an established patient of the prescribing physician, (2) receives a prescription identical to the prescription issued at the previous visit, and (3) was seen by that physician (or a delegate) in the last 90 days either in-person or by audio and video two-way communication. The TMB must provide at least 30 days for public comment on a proposed rule and then hold a public hearing to either adopt the rule or make changes to republish the amended proposed rule.

Bradley will continue monitoring these rulemaking processes and updates.