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DEA Extension of Telemedicine Prescribing and Latest DSH Allotments

May 11, 2023

DEA Proposes New Rules for Telehealth Prescribing of Controlled Substances

After loosening the in-person requirements in prescribing controlled substances (“CDS”) during COVID-19, the Drug Enforcement Administration ("DEA") has begun exploring new rules for the prescribing of CDS via telehealth modalities after the federal Public Health Emergency expires. Earlier this year, the DEA proposed new rules (88 FR 12875) narrowly addressing CDS prescriptions made during telehealth encounters in which the provider has not conducted a prior physical evaluation of the patient. For these types of telehealth-only encounters, CDS prescriptions would be limited to (i) a 30-day supply of Schedule III-V non-narcotic controlled medications; or (ii) a 30-day supply of buprenorphine for the treatment of opioid use disorder. Both exceptions are still subject to state law.

The proposed rulemaking reflects the DEA’s return to its pre-pandemic stance that an in-person patient evaluation is required for prescribing CDS. Accordingly, the proposed rulemaking would not affect telehealth encounters in which the prescriber has previously conducted an in-person evaluation of a patient. Additionally, the proposed rules would not apply to telehealth encounters that do not involve prescribing CDS.

However, following its receipt of 38,000 comments in response to its proposed telehealth CDS rulemaking, the DEA announced that it will temporarily extend the current telehealth flexibilities. It is currently unclear how long the DEA will extend the current telehealth flexibilities for prescribing CDS via telehealth without a prior in-person evaluation, as the temporary rule has not yet been published.

Latest DSH Allotments and IMD DSH Limits

On April 14, 2023, Centers for Medicare & Medicaid Services ("CMS") and U.S. Department of Health and Human Services ("HHS") published 88 FR 23049 and announced final allotments and limitations applicable for federal fiscal years ("FY") 2020 and 2021, and preliminary allotments for FY 2022 and 2023. The allotments are effective May 15, 2023. The federal share ("FS") amount of each state’s FY disproportionate share hospital ("DSH") payments to DSH hospitals are limited in the aggregate each fiscal year. This is represented by the state’s FY DSH allotment. The amount of such FY DSH allotment is calculated by increasing the amount of the state’s DSH allotment from the previous FY by the percentage change in the Consumer Price Index for all Urban Consumers ("CPI-U") for the prior FY.

All DSH allotments listed in the final rule assume that all states qualify for the temporary federal medical assistance percentage ("FMAP") increase under section 6008 of the Families First Coronavirus Response Act ("FFCRA") (Pub. L. 116-127, enacted March 18, 2020), for the period of January 1, 2020 through March 31, 2023. Such increase available during that time period is 6.2%. Qualifying states will receive a temporary FMAP increase for FY 2023 of 5% for the period of April 1, 2023, through June 30, 2023 and 2.5% for the period July 1, 2023, through September 30, 2023.

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