Prior to the COVID-19 public health emergency (“PHE”), the federal Ryan Haight Act allowed a provider to prescribe controlled substance medications to a patient only after conducting an in-person evaluation of that patient (with limited exceptions). At the beginning of the PHE, the Drug Enforcement Agency (“DEA”) granted temporary exceptions to the in-person requirement and allowed the prescribing of controlled medications via telehealth encounters in order to prevent lapses in care.

As reported here earlier, last year, the DEA issued guidance allowing the continued use of telehealth when prescribing controlled substances following the end of the PHE. Waivers of the requirement for in-person encounters that were in place during the PHE were set to remain in effect for practitioner-patient telehealth relationships established as of November 11, 2023, for a one-year extension until November 11, 2024. In other words, as long as a practitioner and patient had established a telehealth relationship on or before November 11, 2023, the PHE flexibilities were to be extended through November 11, 2024, as to that established relationship.

Late last year, the DEA further extended the period during which new practitioner-patient relationships involving the prescription of controlled substances may be formed via telehealth through December 31, 2024.

This additional time will allow smoother transitions for patients and practitioners, and improve compliance with the new rules. The DEA also explained the second extension will assist with ongoing efforts to address the urgent public health need for access to medication used to treat opioid use disorder, balanced against the risk of diversion and problematic prescribing practices by telemedicine companies.

For behavioral health practitioners and patients, this is a welcome extension. More guidance is expected on telehealth controlled substance prescribing requirements by the fall of 2024.

In further telehealth developments, the Department of Health and Human Services Office of Inspector General (“OIG”) recently issued findings from its audit of telehealth claims from the first nine months of the PHE. During that time, the Centers for Medicare and Medicaid Services (“CMS”) issued waivers of certain requirements in order to temporarily expand access to health services provided via telehealth. In particular, these waivers provided more options for patients to receive evaluation and management (“E/M”) services via telehealth rather than having to visit an office or hospital, which would have put them and others at greater risk. This also allowed a wider range of providers to offer telehealth services via different methods in order to assess and manage patients’ health.

During the audit period of March 1, 2020, through November 30, 2020, Medicare paid approximately $1.4 billion for services provided via telehealth. The OIG determined that 14% of that dollar amount represented E/M services provided via telehealth to 110 new and established patients. Of those claims, the OIG’s audit confirmed that the vast majority of providers complied with billing requirements. Insufficient detail or complete lack of documentation deficiencies existed in approximately 5% of claims. The audit also revealed that documentation of telehealth claims complied with waivers in existence at the time. Yet, the OIG noted concern that failure to identify what type of non-public-facing audiovisual communication was used could be problematic for determining HIPAA compliance in the future. Also, in the event CMS resumes geographic restrictions on patients and providers, that information may need to be included in future medical records.