Connecticut Health Law

On October 10, 2023, the federal Drug Enforcement Administration (DEA) and the U.S. Department of Health and Human Services (HHS) published a new temporary rule which extends, through December 31, 2024, the ability of  DEA-registered practitioners to prescribe controlled substances via telemedicine without a prior in-person medical evaluation of the patient.

Background

The extension continues the relaxation of the Ryan Haight Online Pharmacy Consumer Protection Act, which generally allows a practitioner to prescribe controlled substances via telemedicine only after conducting an in-person evaluation of that patient. The law changed markedly in response to the COVID–19 public health emergency (PHE), when the DEA granted temporary exceptions to the in-person evaluation requirement.  As the PHE was winding down,  DEA invited public comment to make certain of the flexibilities permanent, and on May 10 of this year, issued a temporary rule which extended these telemedicine flexibilities through November 11, 2023. The rule also provided a one-year grace period, through November 11, 2024, which allowed controlled substances to be prescribed without the in-person visit requirement for any practitioner-patient telemedicine relationships established on or before November 11, 2023.

The new rule extends the full set of telemedicine flexibilities established during the PHE through December 31, 2024. What this means is that, under federal law, prescribing practitioners may prescribe controlled substances using telemedicine without a prior, in-person medical evaluation of the patient through the end of 2024 regardless of whether the patient and practitioner established a telemedicine relationship on or before November 11, 2023.

What Do Prescribing Practitioners in Connecticut Need to Know? 

Prescriptions issued pursuant to the new temporary federal rule must still comply with state law. Connecticut law imposes its own restrictions on the prescription of controlled substances via telehealth[1] that differ in some respects from the federal restrictions. For example:

• CGS §19a-906 sets requirements for the provision of telehealth services by authorized providers. Subsection (c) prohibits authorized telehealth providers from prescribing Schedule II or III controlled substances through telehealth. However, an exception exists for Schedule II and III non-opioid drugs to be prescribed in a manner consistent with the Ryan Haight Act for the treatment of a person with a psychiatric disability or substance use disorder.
• Public Acts 21-9, 21-133 and 22-81, among other things, expand the types of providers authorized to provide telehealth services and impose additional obligations on telehealth providers through June 30, 2024 that are not included in CGS §19a-906. For example, appropriately credentialed physical and occupational therapy assistants, genetic counselors and nurse-midwives are authorized to provide telehealth services in Connecticut until the end of June, 2024. In addition, under these temporary Public Acts, telehealth providers must determine whether a patient has health coverage that is fully insured, not fully insured or provided through the Connecticut Medical Assistance Program (CMAP), and whether the patient's health coverage, if any, provides coverage for the telehealth service. The 2022 Public Act also allows telehealth providers to provide authorized telehealth services via audio-only telephone until June 30, 2024.
• Under CGS §21a-249, Connecticut law prevents practitioners from issuing prescriptions that permit refills of Schedule II drugs.  During the PHE, the Connecticut Department of Consumer Protection (DCP) attempted to clarify the rules surrounding refills and renewals of controlled substances in this memorandum. Consistent with CGS §21a-249, the memo states that Schedule II controlled substance prescriptions cannot be refilled, but the memo also provides the following guidance:

“However, practitioners who have a pre-existing relationship with a patient, and have prescribed a Schedule II controlled substance in the past may reissue a Schedule II controlled substance prescription to that patient [without an in-person visit].” (Emphasis and brackets in the original.)

Presumably, the bracketed language refers to the Ryan Haight Act’s requirement for a prior in-person visit, but without further explanation it is not wholly clear what DCP intended. The memo also summarizes the provisions of CGS §21a-249 regarding refills of controlled substances in Schedules III-V that Connecticut providers should already be familiar with.

Providers who render telehealth services under the CMAP should review the CMAP telehealth website and monitor it periodically for guidance, as there may be additional limitations on the provision of telehealth services by these providers.

Looking Forward

In the new temporary federal rule, DEA states that it is working to promulgate new standards or safeguards for telehealth prescribing by the fall of 2024. As for state law, we expect that the General Assembly will address the temporary telehealth laws in the next legislative session to extend, amend or make permanent these provisions. Nonetheless, especially in the realm of refilling prescriptions for Schedule II controlled substances via telehealth, Connecticut practitioners should proceed warily as the DEA continues to defer to state law on such matters and the state law remains unclear.

If you need assistance navigating the intersection of federal and state law with respect to the prescribing of controlled substances via telehealth, please contact one of the attorneys in our Health Care Department.

[1] Connecticut law generally uses the term “telehealth,” while federal law uses the term “telemedicine.” While the terms are largely interchangeable, federal law sometimes uses “telehealth” to refer to the delivery of both clinical and non-clinical health care services through remote communications technology, and “telemedicine” to refer to the delivery of only clinical health care services through such technology. In some contexts, Connecticut uses the term “telemedicine” to refer to synchronized, audio-visual two-way communication services, and “telehealth” as an umbrella term for remote health services including either telemedicine or audio-only. (See, e.g., these FAQs from the Connecticut Department of Social Services.)