Effective Dates of DEA Final Rules for Telemedicine Prescribing Delayed

On Friday, February 14, 2025, the Drug Enforcement Administration (“DEA”) and the U.S. Department of Health and Human Services (“HHS”) announced that the effective dates for two recently published final rules involving telemedicine prescribing of controlled substances – the final rule titled “Expansion of Buprenorphine Treatment via Telemedicine Encounter” and the final rule titled “Continuity of Care via Telemedicine for Veterans Affairs Patients” (collectively referred to herein as the “Buprenorphine and VA Telemedicine Prescribing Rules”) – are delayed from February 18, 2025, until at least March 21, 2025 (see our previous post on the Buprenorphine and VA Telemedicine Prescribing Rules).

The final rule delaying the effective dates of these final rules is scheduled for publication to the Federal Register on Wednesday, February 19, 2025.

The delays stem from the Presidential Memorandum titled “Regulatory Freeze Pending Review,” (the “Freeze Memo”) issued on January 20, 2025. The Freeze Memo orders all executive departments and agencies to “consider postponing” the effective dates of all rules published to the Federal Register that have not yet taken effect, such as the Buprenorphine and VA Telemedicine Prescribing Rules, until at least March 21, 2025 (sixty days from the issuance of the Freeze Memo), to allow review of any questions of fact, law, and/or policy raised by the rule, and to “consider opening” a comment period for stakeholders to comment on those questions. Accordingly, the DEA is also soliciting comments on: 1) the extension of the effective dates, 2) whether the effective dates should be further extended, and 3) questions of fact, law, and policy raised by these rules, for consideration by officials of the two agencies. Comments are due by February 28, 2025.

The Friday, February 14, 2025 announcement by HHS and DEA, delaying the effective dates, clarified that: “[t]hese new effective dates will not delay or limit the ability of the practitioners covered by these two rules to prescribe via telemedicine, because the ‘Temporary Extension of COVID-19 Telemedicine Flexibilities for Prescription of Controlled Medications,’ which has been in effect since May 10, 2023, permits practitioners to prescribe via telemedicine through December 31, 2025.”

The DEA issued a Notice of Proposed Rulemaking (“NPRM”) titled “Special Registrations for Telemedicine and Limited State Telemedicine Registrations” on January 17, 2025, the same date that HHS and DEA published the Buprenorphine and VA Telemedicine Prescribing Rules. Because the NPRM is in the early stages of the administrative rulemaking process, the proposed rule appears largely unaffected by the Freeze Memo, and comments remain due March 18, 2025.

Takeaways

Practitioners can continue to prescribe via telemedicine without first having an in-person visit with the patient, subject to compliance with other federal and state prescribing requirements, because the Temporary Extension of COVID-19 Telemedicine Flexibilities for Prescription of Controlled Medications, permits practitioners to prescribe via telemedicine through December 31, 2025. The EBG team continues to monitor any changes to the Buprenorphine and VA Telemedicine Prescribing Rules, which are now scheduled to go into effect on March 21, 2025.