A year into the pandemic, and coronavirus disease 2019 (COVID-19) has radically changed our health care system from the pace at which new drugs come to market to how patients access health care and medications. Arguably one of the most dramatic shifts has been the major increase in telehealth usage and the expansion of services that can be provided online. According to a Centers for Disease Control and Prevention analysis , the number of telehealth visits increased by 50% during the first quarter of 2020, compared with the same period in 2019. In addition, a study recently published by the COVID-19 Healthcare Coalition found that of over 2,000 patients who received at least one telehealth visit during the pandemic, the majority found the experience overwhelmingly positive, with 79% responding they were satisfied with their telehealth visit and 73% expecting to continue receiving health care services virtually beyond the pandemic.
However, whether telehealth policy changes are here to stay depends largely on what actions Congress and government agencies take as we prepare to transition into a post-pandemic world. Many of the laws and regulations enacted in response to the COVID-19 pandemic, described more in depth in our post from last May , were provisional and set to expire with the conclusion of the public health emergency.
While the federal public health emergency is not expected to end this calendar year, Congress has already started to explore what provisional laws and regulations they may make permanent . Not surprisingly, ensuring access to telehealth post-pandemic has been a major focus for advocates and policymakers alike. Many members of Congress have prioritized telehealth reimbursement through federal programs like Medicare. However, the future of other policies like the ability for telehealth providers to remotely prescribe controlled substances (CS) remains uncertain.
Telehealth Involving CS, the Ryan Haight Act
In January 2020, the Drug Enforcement Administration (DEA) announced that they were loosening remote prescribing restrictions of Schedule II through Schedule V CS for the duration of the public health emergency. In effect, this rolled back select provisions of the Ryan Haight Online Pharmacy Consumer Protection Act , originally passed in 2008 to narrow the circumstances outlined in the Controlled Substances Act under which a CS can be prescribed via telemedicine. The Act was named in remembrance of Ryan Haight, who at 18 years old died of an overdose of Vicodin that had been prescribed to him via a telemedicine consult by a doctor who had never met him in person and did not conduct an adequate medical evaluation.
The Ryan Haight Act requires practitioners issuing a prescription for a CS to conduct an in-person medical evaluation or conduct a video/audio communication in a DEA-registered facility at a minimum of once every 24 months. However, with the DEA’s recently loosened rules, providers can now issue a prescription for a CS without first conducting an in-person examination, provided all of the following conditions are met:
- The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of their professional practice;
- The telemedicine communication is conducted using an audio-visual, real-time, and two-way interactive communication system; and
- The practitioner is acting in accordance with applicable federal and state laws.
Even before the pandemic, DEA had – and continues to have – the legal authority to allow telemedicine prescribing of controlled substances. DEA could use their existing Ryan Haight Act authority to create a special registration program for telehealth providers. Indeed, Congress directed DEA to create a telemedicine special registration program as part of the SUPPORT for Patients and Communities Act signed into law in 2018. To date, no program has been established.
Advocates contend that allowing telemedicine providers to continue to prescribe CS without a prior in-person medical evaluation is critical to patients’ access to care, especially for addiction treatment and child and adolescent mental health care. The real-world data demonstrating the effectiveness of DEA’s pandemic policy changes will take years, and, unlike with other telehealth services, the extent of providers’ use of telehealth to prescribe CS during the pandemic is still largely unknown. A preliminary study has shown while substance use disorder providers embraced the adoption of telehealth for outpatient services (97%) and group counseling (77%) during the COVID-19 pandemic, far fewer used it to prescribe buprenorphine (17%) and other medications (16%).
Over the coming months, as Americans begin to see the light at the end of the tunnel of this pandemic, policymakers in Washington — both in Congress and across federal agencies — will determine the future of health care and if Americans will be allowed to continue to access care and certain controlled services virtually.