At ATA, stakeholders get say over DEA proposed rule on remote prescribing 

Stakeholders have been invited to voice their concerns over a controversial DEA proposed rule.

Photo: Morsa/Getty Images

At a special listening session this morning at American Telemedicine Association Annual Conference & Expo, stakeholders were invited to voice their concerns over a controversial DEA proposed rule.

The DEA proposal would discontinue the ability for telemedicine prescribing of controlled substances when the patient never had an in-person exam, something that was central to waivers allowed under the public health emergency. The ATA has said that requiring patients who initiated treatment by telehealth during the pandemic to visit a provider for prescriptions is overly restrictive and could cause harm.

The proposed rule was expected to be a big topic among those who attended the ATA2023 Annual Conference & Expo, March 4-6, in San Antonio, Texas. From 7 to 8 a.m. Monday, Kyle Zebley, senior vice president of Public Policy at the ATA, was scheduled to moderate the special listening session.

A representative from the DEA was invited to hear the concerns, and was in the audience, according to Attorney Nathaniel Lacktman, chair of Foley and Lardner's National Telemedicine and Digital Health Industry Team, who serves on the ATA's Board of Directors.

Much of the DEA content in the proposed rule serves as a bridge between waivers and the post-waiver world, according to Lacktman. While the DEA proposes to make permanent flexibilities allowed under the public health emergency, the in-person prescribing rule is more restrictive than necessary, he said.

"I believe they will largely follow this established rubric, but will likely make changes," Lacktman said. "They will recognize the need to stop patients from falling off the telehealth cliff." 

WHY THIS MATTERS

One issue is the Ryan Haight Act of 2008, which states that where controlled substances are prescribed through the internet, the general requirement is that the prescribing practitioner must have conducted at least one in-person medical evaluation of the patient. The Act offers seven telemedicine exceptions to the in-person exam requirement, but they are narrow and do not reflect contemporary accepted clinical telemedicine remote prescribing practices, according to Foley & Lardner.

The Ryan Haight Act was initiated because of opioids being dispensed online, and not through telemedicine, Lacktman said. It was made law to revoke illegal subscribing. "The fact remains, the proposed rule adds more boxes to check," Lacktman said. "It has the same net effect of confusing legitimate (prescribers). The law only affects those who care about compliance."

THE LARGER TREND

On Friday, February 24, the DEA issued a proposed rule for permanent telemedicine flexibilities, specifically proposing permanent rules for the prescribing of controlled medications via telemedicine beyond the end of the public health emergency.

Public comment is open for 30 days. The public health emergency is set to end on May 11.

The $1.7 trillion omnibus spending bill that passed in December 2022 extends telehealth flexibilities through the end of 2024. Prior to passage, providers and Congress – which needed to act to block the telehealth cliff – were looking at getting an additional 151 days after the end of the PHE.

The American Hospital Association last month said it supports bipartisan legislation, introduced in the House of Representatives, that would require the Department of Health and Human Services, the Medicare Payment Advisory Commission, and the Medicaid and CHIP Payment and Access Commission to study expanded telehealth use during the COVID-19 pandemic and recommend potential enhancements to telehealth access and quality.

Twitter: @SusanJMorse
Email the writer: SMorse@himss.org

J. Tod Fetherling will offer more detail during his HIMSS23 session "Using AI to Predict Lung Cancer." It's scheduled for Thursday, April 20, at 1-2 p.m. CT at the South Building in room S103.