Prescribers May Forego In-Person Medical Exam When Prescribing Controlled Substances via the Internet During COVID-19 Public Health Emergency

Under the federal Ryan Haight Act (the “Act”), prescribers must ordinarily perform an in-person medical evaluation of a patient before using the Internet to prescribe controlled substances for that patient. The Act contains an exception to the in-person evaluation requirement when prescribing is done via the “practice of telemedicine,” as defined in the Act. The Act’s definition of telemedicine includes the practice of medicine by means of an acceptable telecommunication system during a public health emergency declared by the Secretary of Health and Human Services (the “Secretary”), with the concurrence of the federal Attorney General through the Drug Enforcement Administration (“DEA”).

On January 31, 2020, the Secretary issued declared a public health emergency relating to the COVID-19 virus, existing nationwide since January 27, 2020. On Tuesday, March 17, 2020, the Office of Management and Budget approved the DEA’s guidance concerning telemedicine and the COVID-19 national health emergency. The DEA’s guidance can be found on the Diversion Control Division’s COVID-19 Information Page, located at: https://www.deadiversion.usdoj.gov/coronavirus.html. In short, the DEA has activated the exception in the Act for use of telemedicine to prescribe controlled substances during the COVID-19 national emergency, removing the need for an in-person medical evaluation prior to prescribing controlled substances via the Internet. This DEA guidance will remain in effect for so long as the Secretary’s designation of the national COVID-19 public health emergency remains in effect.

To sign up for Dykema’s Health Care Blog e-mail updates, please click here.