On October 10th, the DEA sent the federal Office of Management and Budget (OMB) a proposal for a “Third Temporary Extension of COVID-19 Telemedicine Flexibilities for Prescription of Controlled Medications.” All final DEA rulings must clear OMB review before being finalized and published to the Federal Registrar. Although the proposal’s content is not yet public, sources say that this most recent DEA ruling will extend the COVID-19 telemedicine prescribing flexibilities, currently set to expire in December 2024, for at least one more year. Most notably, these flexibilities waive the in-person appointment requirement for prescribing a controlled substance.
Concerns Over June DEA Proposal and Restrictive Measures
This extension comes on the heels of a more restrictive proposal the DEA submitted to OMB in late June. A former DEA official leaked the contents of the June proposal. If passed, the June proposal would have required fifty percent of appointments to be in-person for controlled substance prescribing as well as requiring prescribers to check all 50 state pharmacy databases before prescribing a controlled substance-something which is currently impossible to do. Reportedly, the Department of Health and Human Services (HHS) raised significant concerns with the June proposal, blocking its formal release more than three times and laying out more than 400 specific concerns.
Pushback from Healthcare Leaders and Advocates
After the June DEA proposal was leaked, clinicians, medical leadership groups, advocacy groups, and members of Congress directly appealed to the DEA to reconsider these restrictions. Some of the most vocal advocates of continued telemedicine flexibility include the American Telemedicine Association (ATA), the Alliance for Connected Care, and the American Hospital Association (AHA).
AHA’s Advocacy for Telemedicine Flexibility
On October 4th, the American Hospital Association (AHA) sent a letter to the administrator of the Centers for Medicare and Medicaid (CMS) urging CMS to A) extend the COVID-19 telemedicine flexibilities for at least two more years and B) enforce requirements in the 2008 Ryan Haight Act and 2018 SUPPORT Act. Both laws required the development of a specific registration process where telemedicine could be used for controlled substance prescribing without an in-person evaluation.
Legal Requirements for Telemedicine Pathways Under the Ryan Haight Act
While the 2008 Ryan Haight Act is most recognized as the law that requires an in-person appointment for controlled substance prescribing, the law also specifies that the Attorney General shall promulgate regulations specifying circumstances in which a special registration for telemedicine prescribing may be issued and the procedures for obtaining such a special registration. Despite becoming law nearly 16 years ago, the additional telemedicine pathway requirements in the Ryan Haight Act never came to fruition.
The 2018 SUPPORT Act and Opioid Treatment Access
The SUPPORT Act of 2018 was explicitly designed to address the opioid epidemic and increase access to addiction treatment. It passed with strong bipartisan support. Recognizing the continued lack of telemedicine pathways for controlled substance prescribing, this bill also mandated that the DEA and HHS create additional DEA registration regulations specifying (1) the circumstances in which a special registration for telemedicine may be issued that authorizes the prescribing of controlled substances without an in-person evaluation; and (2) the procedure for obtaining a special registration.
DEA’s Delays in Implementing Telemedicine Pathways
Sadly, despite the passage of both the Ryan Haight Act and the SUPPORT Act, the DEA has yet to issue any rules to provide a permanent pathway for telemedicine prescribing of controlled substances. It appears that the most recent October 10th DEA ruling will merely kick the legislation can down the road for another year or two while providers and healthcare organizations remain in prescribing limbo.
On the one hand, it’s nice to know that telemedicine prescribing for controlled substances will continue without additional in-person visit requirements for the next year or two. This will allow millions of Americans to continue life-saving addiction treatment medications. On the other hand, shouldn’t the DEA be required to follow the law like the rest of us? Shouldn’t we hold them accountable to create a telemedicine-controlled substance registration process, as required of them now in two separate laws?
The Impact of Delays on Healthcare Providers and Patients
As medical providers, the DEA holds each of us accountable to the precise letter of the law. Because of the decades-long delay in creating a DEA telemedicine-controlled substance registration, millions of physicians like myself around the country are still required to have a physical practice address in each separate state where they dispense controlled substances and a very pricey DEA number for each individual state. The state DEA number costs almost a thousand dollars and must be renewed (for even more money) every three years.
Because of these logistical and financial burdens, many providers limit their patient care to one state and one location. Who loses here? You. The patient. In many circumstances, patients are forced to drive from one state to another just to obtain care from a specialist who can only afford to own a physical practice location and DEA number in one state.
Demanding Accountability from Federal Agencies
Let’s demand more from our federal agencies. Just as they do with us, let’s hold them accountable to following all of the laws in the United States, not just the ones that best suit their interests. We may have won the battle with the latest temporary telehealth extension. But we have not won the war until a permanent pathway is in place for telehealth-controlled substance prescribing: a path that best protects the legitimate medical needs of the American people while lowering arbitrary barriers to care.
The Path Forward: Permanent Solutions for Telehealth and Controlled Substance Prescribing
The third telehealth extension is an ok start in the right direction. But let’s not settle for ok. Let’s finally demand execution of the 2008 and 2018 legal promises to carve out a path for telehealth permanently. Let’s hold our federal agencies accountable to following the letter of the law, in the same way they do for us. Our fellow Americans struggling with addiction are depending on it. And our future generations will thank us for it.
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