In October 2018 passed the law titled “Improving Access to Remote Behavioral Health Act” would allow certain community mental health centers and addiction treatment centers to obtain DEA registration as a clinic, thereby allowing telemedicine providers to prescribe controlled substances to patients present at those sites without the need for an in-person examination. Currently, treatment sites are restricted to DEA-registered hospitals and some very limited other non-hospital clinics.
Congress simultaneously released a companion discussion bill titled the “Special Registration for Telemedicine Clarification Act” directing the Attorney General, with the Secretary of Health and Human Services, to, within 30 days of passage of the Act, promulgate interim final regulations governing the issuance to practitioners of a special registration relating to the practice of telemedicine. This special registration would allow practitioners to use telemedicine to prescribe substances with the currently required face-to-face in-person exam as a pre-requisite to care
The Original Intent of the Ryan Haight Act
The Ryan Haight Online Pharmacy Consumer Protection Act was designed to combat the rogue internet pharmacies that proliferated in the late 1990s, selling controlled substances online. The Act took effect April 13, 2009 and the Drug Enforcement Agency (DEA) issued regulations effective that same date. The Act essentially imposed a federal prohibition on form-only online prescribing for controlled substances.
Although the Act was intended to target “rogue” internet pharmacies, legitimate healthcare providers who prescribe controlled substances via telemedicine must carefully review the regulations to ensure compliance.
The Ryan Haight Act does not per se prohibit the use of telemedicine to prescribe controlled substances, and a provider may do so if he or she has conducted at least one in-person exam of the patient or meets a “practice of telemedicine” exception to the Act’s in-person exam requirement. The problem is the “practice of telemedicine” exceptions are very narrow, highly technical, and simply outdated. For example, the Ryan Haight Act does not have a “practice of telemedicine” exception if the patient is at home, school, or work. The practice of telemedicine has evolved exponentially in the decade since the Ryan Haight Act was passed, and the regulations fail to account for how legitimate telemedicine services are delivered today. For that reason, the exceptions do not easily align with direct-to-patient service models frequently sought by patients in areas such as telepsychiatry or substance use disorder treatment. In addition, there is a nationwide shortage of psychiatrists and board certified substance abuse addiction specialists, coupled with the nation’s tragic opioid crisis, making telemedicine services an attractive resource.