More than a decade after the passage of the Ryan Haight Online Pharmacy Consumer Protection Act of 2008, the US Drug Enforcement Agency is finally taking steps to fulfill a task assigned by the legislation: the creation of a special registration process for telemedicine prescribing laws by which healthcare providers can apply for authorization to prescribe controlled substances to new patients they have never met in the office, instead examining them only via the “practice of telemedicine.” This long-overdue measure has been welcomed by organizations including the American Telemedicine Association and the Center for Telehealth & e-Health Law, who have long been lobbying the DEA to take action. Considering the current shortage of psychiatrists and board-certified substance abuse addiction specialists, combined with the nation’s opioid epidemic, many industry experts view telemedicine as a delivery tool that can bring treatment and aid to many more individuals, much more quickly—but only if permitted by the DEA.
The Ryan Haight Act strictly regulates a provider’s ability to prescribe controlled substances such as opioids. Before issuing such a prescription, the provider must first meet and examine the patient in person—except when using telemedicine. The Ryan Haight Act calls for telemedicine prescribing laws with a special registration granted by the DEA in which the “in-person meeting” requirement could be met by a telemedicine visit. However, the registration process was never developed.
After empty promises from the DEA in 2016, a concerted push from legislators in 2018 led to the passage of the SUPPORT for Patients and Communities Act, a collective measure designed to address the nation’s opioid epidemic. As part of this legislation, the Special Registration for Telemedicine Act of 2018 set a deadline of October 24, 2019 for the DEA to determine the ground rules for administering the aforementioned special registration. The DEA complied just this week with a regulatory posting that suggests that its initial rule would be submitted to the Office of Management and Budget in December 2019.
Despite the forward movement, some critics remain skeptical of the Ryan Haight Act’s ability to adequately address telemedicine technologies and practices that have evolved since 2008. Since the original writers could not predict the future advances, the Ryan Haight Act—as written—may still be too restrictive; for instance, the “practice of telemedicine” consultation may be substituted for the in-person exam requirement, but how is “practice of telemedicine” defined? Currently, if the patient is at home, work, or school, the Ryan Haight Act does not consider the encounter a “practice of telemedicine”—but use cases such as these are already occurring. Direct-to-patient service models did not exist in 2008, and as a result they do not align neatly with the “practice of telemedicine” as defined in current telemedicine prescribing laws.
More optimistic industry watchers, especially those within the ATA and CTeL, are welcoming this opportunity to widen the scope of what, exactly, is considered “practice of telemedicine,” and to significantly expand access to substance-abuse disorder treatment and telepsychiatry. Two years ago, the efficacy of using telemedicine to treat addiction was under question; now, the successes garnered thus far, combined with the increasing shortage of addiction specialists, appears to be driving the need for addiction treatment via telemedicine. Under the legislation, the public will have a chance to examine and comment on the regulations before they become final, thus providing a way to balance the increased need for behavioral health resources, the constantly changing landscape of telemedicine technologies, and DEA’s responsibility to protect the safety and wellbeing of citizens.