Alert: DEA's Telemedicine Allowances ALMOST Extended (Again)

By: Hunter DeKoninck

As Scott Brinks and I emphasized in our August post "Is DEA Hurtling Us Toward the Telehealth Cliff," we have been quickly approaching the year-end expiration of DEA's third extension to its COVID-era telemedicine flexibilities, threatening to create significant disruption and potential patient harm for a nation that has grown dependent on telemedicine services over the last five years. We are now one step closer to seeing that expiration extended.

On three prior occasions, DEA has extended certain telemedicine allowances that it originally granted in 2020 under the COVID-19 Public Health Emergency (the first was published May 10, 2023, the second published October 10, 2023 and the third published November 19, 2024). Most significantly, these allowances (1) have permitted practitioners to prescribe controlled substances to patients without having to first conduct the requisite in-person evaluation (the "Telehealth Allowance") and (2) have permitted practitioners to prescribe controlled substances in multiple states without needing to obtain a DEA registration in each of those states, so long as they hold at least one DEA registration (the "State Reciprocity Allowance").

The third extension is set to expire on December 31, 2025 (yes, next month). DEA originally expected it would issue a Final Rule on telemedicine prior to that expiration date, which would negate the need to further extend the allowances. However, one month out from the expiration date, DEA finds itself nowhere close to a Final Rule, so the end-of-year expiration has all of the sudden emerged as an unavoidable crisis DEA must address.

In recent months, it became increasingly clear DEA's only option is to issue a fourth extension for the allowances and, sure enough, DEA has now taken a big step to secure that extension. This week, DEA submitted to the Office of Management and Budget ("OMB") its proposed fourth extension of the allowances, which must be reviewed and approved by the OMB before it can go into effect.

The prolonged federal government shutdown increasingly creating anxiety of whether the OMB would even be able to get DEA's fourth extension across the finish line. So, last night's "reopening" of the government breathed life into DEA's extension. Given the critical public health issues surrounding telemedicine and the widespread public support for telemedicine, I am confident the OMB will prioritize its review of the DEA's fourth extension and finalize it before the third extension expires. With that said, there is no guarantee the OMB will timely finalize the extension and avoid this crisis, so registrants will need to closely monitor what the OMB does as we approach December 31st.