A Declaration without a Response: Senators Urge DEA to Enact Regulations on Opioid-Based Addiction Treatments Using Telemedicine

By and on February 16, 2018

This past fall, after months of speculation, President Trump declared the opioid crisis sweeping the United States a national public health emergency. Upon the president’s declaration, Acting Health and Human Services Secretary Eric D. Hargan made a formal declaration under Section 319 of the Public Health Service Act, making available an exception to the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 (the Haight Act) that would allow providers to prescribe controlled substances using telemedicine without first conducting an in-person visit.  Currently, the Haight Act restricts the ability of a provider to prescribe controlled substances using telemedicine without first conducting an in-person examination, unless an exception applies. For a detailed discussion regarding the Haight Act and the restrictions on the use of telemedicine to prescribe controlled substances within the context of the treatment of opioid addiction and mental health generally, our latest article addresses the opioid crisis and access to mental and behavioral health providers.

The declaration of a public health emergency allows the US Drug Enforcement Agency (the DEA) to remove the restriction of prescribing controlled substances using telemedicine for the treatment of opioid addiction, but the DEA has not promulgated any rules or guidance on the subject. The lack of development has drawn the interest of Senators Claire McCaskill, Lisa Murkowski, and Dan Sullivan. The senators, in a January 30, 2018, letter to Robert Patterson, the acting administrator of the DEA, note that the restriction on the use of telemedicine from prescribing addiction treatment medications continues to have a harmful impact on rural Americans, citing specifically to Missouri, where 98 out of its 101 rural counties lack a licensed psychiatrist. In this letter, the senators call on Mr. Patterson to expedite the rulemaking process to create a special registration process to permit the prescription of opioid-based medication-assisted addiction therapies via telemedicine without first performing an in-person visit.

McDermott Will & Emery LLP will continue to monitor whether progress is made to develop this expedited rulemaking process and report updates on this blog.

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Lisa MazurLisa Mazur
Lisa Mazur advises health care providers and technology companies on a variety of legal, regulatory and compliance matters with a particular focus on digital health topics, including telehealth, telemedicine, mobile health and consumer wellness. Lisa advises a variety of health care providers and technology companies involved in “digital health,” including assisting clients in developing and implementing telemedicine programs by advising on issues related to professional licensure, scope of practice, informed consent, prescribing and reimbursement. Lisa helps clients identify and understand the relevant legal issues, and develop and implement practical, forward-thinking solutions and strategies that meet the complex and still-evolving digital health regulatory landscape.  Read Lisa Mazur's full bio.

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