ATA Submits Recommendations for Telehealth Prescription Flexibility

September 08, 2023 - ATA Action, the advocacy arm of the American Telemedicine Association (ATA), has submitted recommendations to the United States Drug Enforcement Administration (DEA) on creating a special registration process for the virtual prescribing of controlled substances.

The group asked the DEA to consider the following principles when regulating the virtual prescribing of controlled substances: "Clinical practice should not be limited by non-clinical decision-makers, and telehealth is not a type of care, but a modality of care."

Its recommendations for a special registration process include tenets such as telehealth providers should not be required to maintain local addresses in every state where they practice, and special registration should not be limited to any specific specialty or treatment condition.

There are seven tenets in total, including ones noting that the special registration process should not place any arbitrary limits on a clinician's ability to practice within the scope of their authority.

The special registration process should also include the elements the DEA needs to monitor to identify illegal prescribing practices and practitioners, ATA Action stated.

"ATA Action's comments to DEA’s March 2023 proposed rules specifically detail why in-person mandates restrict access to care and how restricted access to telemedicine will increase patient harm and diversion risk. We appreciate DEA's efforts to review and incorporate stakeholder feedback on those comments, including considering the creation of a Special Registration process," wrote Kyle Zebley, executive director of ATA Action, in the document submitted to the DEA.

The Ryan Haight Online Pharmacy Consumer Protection Act of 2008 called for creating a special registration process that would allow healthcare providers to use telehealth to prescribe controlled substances without a prior in-person examination.

The act requires an in-person medical evaluation as a prerequisite to prescribing controlled substances by virtual modalities, except for "a practitioner engaged in the practice of telemedicine." The definition of the "practice of telemedicine" provides seven categories for providers to meet the in-person requirement through a virtual care platform, including under a special registration granted by the DEA. But the special registration process was never created, despite multiple calls from lawmakers and the healthcare industry.

During the pandemic, the DEA waived the Ryan Haight Act, allowing the prescription of controlled substances through telehealth without an in-person medical exam. As the expiration of the COVID-19 public health emergency (PHE) grew closer, however, the DEA proposed rules that would limit virtual prescribing.

The proposed rules extended some pandemic-era flexibilities, like telehealth prescriptions of a 30-day supply of buprenorphine for opioid use disorder (OUD) treatment without an in-person evaluation, but not others, like virtual prescriptions for controlled substances like Adderall, Oxycodone, Vicodin, and Ritalin.  

The industry pushed back, sending letters to the DEA noting their concerns and requesting changes that extend pandemic-era prescribing flexibilities.

In its letter, ATA Action noted that not only would the proposed limitations reduce access to care for marginalized groups, but it would also be ineffective in curbing drug diversion.

The American Hospital Association, which previously requested the DEA to provide proposed rules for the special registration process, reiterated that request in a March 29 letter.

After receiving nearly 38,000 comments on its proposed limitations, the DEA agreed to extend the pandemic flexibilities through November 2023.

Further, in August, the DEA announced plans to conduct public listening sessions in the fall, during which time the agency said it would look into the special registration process.

"DEA is open to considering — for some controlled substances — implementation of a separate Special Registration for telemedicine prescribing for patients without requiring the patient to ever have had an in-person medical evaluation at all," the agency stated.