DEA Confirms Providers Can Prescribe Controlled Substances Via Telemed

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The Department of Health and Human Services (HHS) and the Drug Enforcement Administration (DEA) have released clarification of United States Code contained in the Controlled Substances Act affecting Telehealth visits. 

 

President Trump in a Tuesday briefing said his administration would "encourage everyone to maximize use of telehealth to limit exposure to the virus."

 

The DEA has clarified that during a Public Health Emergency, which was issued by Secretary Azar of HHS on January 31st, 2020 due to the COVID-19 virus, that controlled substances may be prescribed via telemedicine without first conducting an in-person visit with the patient.  The Ryan Haight Act of 2008 established regulations and prohibited heathcare providers from prescribing controlled substances to patients that they haven’t first examined in-person.  Section 802(54)(D) of the Controlled Substances Act allows for the Ryan Haight Act to be circumvented during a public health emergency which would allow MDToolbox customers to electronically prescribe controlled substances (EPCS) for patients via telemedicine.

 

The DEA has stated three conditions for prescribing controlled substances via telemedicine:

  • The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of his/her professional practice
  • The telemedicine communication is conducted using an audio-visual, real-time, two-way interactive communication system.
  • The practitioner is acting in accordance with applicable Federal and State law.

 

Not all States allow for EPCS via telemedicine, prescribers will need to ensure that they are following both their State law as well as the State law where the patient resides prior to prescribing via telemedicine.  Some states that allow for EPCS via telemedicine include Indiana, Michigan, Ohio, Florida, Delaware, New Hampshire, West Virginia, and Connecticut.  Prescribers should contact their State Medical and Pharmacy Boards as well as the State Boards where their patient resides to ensure their compliance.

 

HHS has also issued further clarification on the systems that can be used for a telemedicine visit, they have ensured penalties will not be enforced for using apps such as:

  • Apple FaceTime
  • Facebook Messenger video chat
  • Google Hangouts video
  • Skype

 

This is not an inclusive list and are examples of apps that can be used.  The app must be a private communication means that support both audio and video.  The DEA provided further clarification that public communication apps or streaming services are not to be used such as:

  • Facebook Live
  • Twitch
  • TikTok

 

The DEA has missed several deadlines to establish rules and a waiver system to allow electronic prescribing of controlled substances via telemedicine during a time in which we are not in a Public Health Emergency.  Reducing these road-blocks, as we are seeing with the emergency measures in place due to COVID-19 can help bring healthcare into the 21st century and help reduce stress on our medical system as well as help prevent infections.

 

We at MDToolbox applaud HHS and the DEA for removing the telemedicine restrictions and our team are watching for more regulation changes on a federal level that would allow electronic prescription of controlled substances via a telehealth practitioner.  You will find any policy and regulation updates here in our blog.  MDToolbox looks forward to working with telehealth providers and help provide tools and resources in combating healthcare system strain.  Contact us for more information or to start your free 30 day free trial.

TELEMEDICINE & EPCS: New Regulations Coming in Fall 2019!

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While the United States government has been writing legislation to control addictive drugs since the early 1900’s, The Controlled Substances Act (CSA) of 1970 laid the groundwork for how controlled substances are regulated.  The CSA established the schedule system that is still used today for drug classification.  The act also established policy for regulations on the manufacture, importation, possession, use, and distribution of scheduled substances.  The CSA has been amended 9 times since its enactment, the eighth amendment in 2008 was titled The Ryan Haight Online Pharmacy Consumer Protection Act which brought portions of the CSA into the digital age.

The Ryan Haight Act amends the CSA to prohibit the delivery, distribution, and dispensing of controlled substances over the internet without a valid prescription.  The Ryan Haight Act forces online pharmacies to report their controlled substance prescriptions to the Attorney General and requires that online pharmacies to display compliance information on their website.  There are several definitions established in the Act, one of the most important being that a “valid prescription” must come from a practitioner that has conducted at least one in-person medical visit with the patient.  As technology has advanced and telehealth has risen in popularity, this section of the Act has created issues for digital practitioners that may never see their patient in face to face.

The Ryan Haight Act also contains a “Special Registration for Telemedicine” section that tasked the Attorney General to issue certain regulations to allow the prescribing of controlled substances without an in-person consult.  The Attorney General has not issued an update on this provision since the Ryan Haight Act was written and enacted in 2008.  Some States have taken that responsibility upon themselves to rule on controlled substances being issued by telemedicine such as Indiana, Michigan, Ohio, Florida, Delaware, New Hampshire, West Virginia, and Connecticut[1].  These states passed legislation allowing for controlled substances to be prescribed via telehealth without seeing the patient in-person so long as certain requirements are met.  The state laws contradict the federal law that the Ryan Haight Act established and there is uncertainty what the legal ramifications might be in court.

In 2018, President Trump signed the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act, also known as the SUPPORT Act.  The Support Act contains legislative changes for many aspects of healthcare including Medicaid and Medicare, funding the CURES Act, an EPCS mandate, State PMP requirements, and many more.  The Support Act also finally sets a date for the telehealth controlled-substance exemptions to be written that were established in the Ryan Haight Act of 2008.  The Support Act requires the Attorney General write the final regulations that specify “the limited circumstances in which a special registration under this subsection may be issued” and “the procedure for obtaining a special registration”[2].  The deadline for the Attorney General to establish these regulations is October 24th, 2019.

We don’t exactly know what the regulations and restrictions will look like or how stringent the requirements for a telehealth provider to prescribe a controlled substance without an in-person visit will be until fall of this year.  The federal regulations could follow some of the State-level legislation or could be in contrast and create a necessary change for telehealth prescribers in those states who have attempted to setup their practice following their State’s laws.

We at MDToolbox are watching for any regulation changes on a federal level that would allow electronic prescription of controlled substances via a telehealth practitioner.  You will find any policy updates here in our blog.  MDToolbox looks forward to working with telehealth providers and help provide tools and resources in combating the opioid epidemic. Contact us for more information or to start your free 30 day free trial.

[1]https://www.healthcarelawtoday.com/2018/06/27/new-connecticut-law-allows-telemedicine-prescribing-of-controlled-substances/

[2]https://www.congress.gov/bill/115th-congress/house-bill/6/text#toc-HA8EADE1EA6CF4E62B8D435826C060821