At first blush, the passage of House Bill 5483, entitled the “Special Registration for Telemedicine Clarification Act of 2018” (the “Bill”), appears to address the issue concerning the lack of regulatory guidance regarding the “Special Registration” exception to the Ryan Haight Act of 2008; however, a deeper and more careful analysis reveals that the Bill may not be as effective as most health care practitioners may hope. The Bill, sponsored by Rep. Carter (R-Georgia), a pharmacist, Rep. Bustos (D-Illinois), and nine others, cleared the House on June 12, 2018 without objection. The Bill would require the federal Drug Enforcement Agency (“DEA”) to promulgate rules that would allow health care providers to apply for a “Special Registration” that would allow a provider to prescribe controlled substances via telehealth without first conducting an initial in-person examination of the patient. A transcript of the testimony in support of the Bill (“Transcript”) reveals enthusiasm by the sponsors of the Bill, as well as by Representatives Pallone (D-New Jersey) and Walden (R-Oregon), who called the Bill “a commonsense measure that cuts through the red tape to provide more treatment options to underserved communities through the use of telemedicine.” While Section 413 of the current version of S.B. 2680 would only give the DEA six months to promulgate such rules, the two bills are very similar and almost guarantee that a law will be signed in the coming months that will require DEA to promulgate rules that will finally create a Special Registration exception to the Ryan Haight Act. While the prospect of rules implementing the Special Registration may be exciting for many practitioners, it should be noted that the DEA has been obligated to create these regulations, and has ignored this obligation, for a decade.

Once enacted, the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 (the “Act”) effectively banned the prescription of controlled substances via telehealth without an in-person examination of the patient. While there are exceptions to the Act, these exceptions are very technical and do not apply to the majority of treatment settings for which a controlled substance could be prescribed by a treating physician to a patient in his or her home. When the Act was passed, Congress appeared to have the foresight to know that the Act was restrictive and that the Act should have some mechanism by which its prohibitions could be relaxed, because the Act also created 21 U.S.C. § 831(h)(2), which orders the Attorney General of the United States and the DEA to “promulgate regulations specifying the limited circumstances in which a special registration under this subsection may be issued and the procedures for obtaining such a special registration.”  However, as we have previously discussed, the only related action the DEA has taken in the decade between the passage of the Act and today was, in 2016, to mark the creation of these rules a “Long-Term Action” that has not substantively been addressed. By suggesting that the DEA “understand[s] the need to implement this provision of law” Rep. Walden appears to be incognizant of the historical lack of the DEA’s movement to promulgate the Special Registration rules, despite the DEA having the authority to do so since the Act originally was passed in 2008. Mr. Walden also seems to advocate for the DEA, as he supports revising the Bill’s original 90-day deadline for the promulgation of rules to implement a one-year deadline on account of the DEA’s position it would be burdensome. As such, the question remains whether the DEA, who has avoided this exact obligation for nearly a decade, will at last take action within the year if the Bill becomes law.

Even if the DEA promulgates rules to create the Special Registration, there is no indication how broadly such rules will be written. In this regard, the transcript illustrates a fundamental difference in how Representatives Walden and Carter view the value of the DEA creating a Special Registration process and, importantly, what the scope of that Special Registration process should be from many psychiatrists and other practitioners. For example, Rep. Walden described the exception to the Act in narrow terms: “for emergency situations, like the lack of access to an in-person specialist” (a phrase also used by Rep. Carter). Mr. Carter stated as well that the original purpose of the Special Registration was for “legitimate emergency situations” as follows:

“The law included the ability for the Attorney General to issue a special registration to healthcare providers detailing in what circumstances they could prescribe controlled substances via telemedicine in legitimate emergency situations, such as a lack of access to an in-person specialist.”

Rep. Carter further stated that the Special Registration could serve as a tool to fight the opioid crisis “to connect patients with the substance use disorder treatment they need without jeopardizing important safeguards to prevent misuse or diversion,” but he did not speak of the Special Registration in broader terms. The statements by Reps. Walden and Carter mischaracterize the original language of the Act regarding the “Special Registration for Telemedicine,” which does not limit the Special Registration to emergency situations.  Rather, the Act explicitly authorizes the Attorney General to issue the Special Registration to a practitioner who “demonstrates a legitimate need for the special registration” without defining the phrase “legitimate need”. As such, “legitimate need” could include “emergency situations” but also could be interpreted to include circumstances under which a physician is authorized to prescribe a controlled substance via telehealth as long as such prescription is in accordance with the substance’s label or the applicable standard of care for treatment of the illness for which the prescription was issued to treat,

If the DEA takes its cues from the recent House testimony supporting the Bill, the agency may decide the Special Registration should be limited to certain declarations of emergencies, such as the declaration of the opioid crisis as a Public Health Emergency. Such a narrow definition may be fruitful in the fight against opioid use disorder, but may ultimately fall short of expectations held by telehealth practitioners interested in providing services to patients via telehealth that involve prescribing controlled substances.

There is a proposal moving through Congress that has some interesting implications for telemedicine.  Sen. Diane Feinstein (D-CA) and Rep. Bill Cassidy (R-LA) have proposed an amendment to the Online Pharmacy Safety Act that would impose additional restrictions on when and under what circumstances practitioners can prescribe medication under the Federal Food, Drug, and Cosmetic Act.  Although the Online Pharmacy Act is primarily intended to put an end to illegitimate pharmacies and the fraudulent sale of drugs online, as the American Telemedicine Association, HealthLeaders, and others  (such as GlobalMed)  have pointed out, the proposed amendment from Cassidy and Feinstein could have more far-reaching implications for telemedicine.

The proposed amendment would provide some limits on when and under what circumstances telehealth practitioners can prescribe drugs.

  • Generally, for non-controlled substances, the prescriber would have to be a “qualified offsite telehealth practitioner”, which would require among other things, that the prescriber be licensed in the state where the patient is located and provide services to the patient through a medical encounter in real-time or instantaneously.
  • Generally, for controlled substances, with some exceptions, prescriptions would have to be provided to patients who are either in the physical presence of another practitioner or physically located and receiving treatment in a hospital or clinic.
  • The amendment would outlaw prescriptions made solely based on the completion of a questionnaire.

The practical effect of these telemedicine requirements would largely vary from state to state.  The proposed amendment is only meant to serve as a statutory floor and many states have more stringent telemedicine prescribing laws than these.  For example, there are still a number of states (especially in the northeastern United States) that do not allow physicians to prescribe telemedically unless the physician has first had a physical in-person encounter with the patient.  The proposed amendment requires such an in-person encounter with the patient, but then creates an exception for qualified offsite telehealth practitioners with respect to non-controlled substances.   This is a significant feature of the amendment because it is a departure from the more stringent physical in-person encounter requirements found in many states.

However, there are still reasons to worry that this legislation could have adverse and unintended consequences.  Scott Mace at HealthLeaders recently reported (here) that the requirements for prescribing controlled substances under this amendment could jeopardize a successful telepsychiatry program in rural North Carolina.  As this situation in North Carolina illustrates, telehealth is a very difficult area to regulate because both telehealth and the technologies supporting it are evolving rapidly, and therefore there is heightened risk that laws such as the proposed amendment form Feinstein and Cassidy would have unintended consequences.

Of course unintended consequences are not always bad.  The fact that this proposed amendment would allow qualified telehealth practitioners to prescribe certain drugs (non-controlled substances) without first having a physical in-person encounter with the patient might persuade some states that continue to require such physical in-person encounters to reconsider. Additionally, more federal safeguards around telemedicine prescribing might make some states more comfortable with proposals to relax their own requirements.