The Future of Online Prescribing
Loyola University Chicago School of Law, JD 2020
Telehealth allows for the delivery and facilitation of medical services through without in-person interaction between provider and patient. It is rapidly evolving as technology becomes more easily accessible. Part of regulation of telehealth was the passage of the Ryan Haight Act which regulated online prescriptions for controlled substances. Ten years after its passage, the Drug Enforcement Agency (DEA) has still not taken any action to assist physicians in their usage of telehealth. Recently, Congress stepped in and passed a bill that requires the DEA to take action and clarify within the next year. But, the question still remains whether the DEA will finally act, or continue their history of avoidance?
The Ryan Haight Act
In 2008, Congress passed the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 (Ryan Haight Act). The Ryan Haight Act was passed to prevent online, form-only prescribing for controlled substances, meaning that online prescription of controlled substances was completely prohibited without an in-person examination of the patient. However, Congress seemed to acknowledge the Act’s restrictive nature. Thus, Congress included a section of the Act which authorized the Drug Enforcement Agency (DEA) to issue telehealth regulations, specifically in circumstances which a “special registration” process could allow for prescribing of controlled substances without an in-person examination.
The House Bill
However, in the ten years since the Act’s passing, the DEA has not issued regulations that expanded the field of telehealth. The Ryan Haight Act required the DEA to create the special registration, but it did not require the DEA to activate the special registration. As such, Congress passed House Bill 5483, otherwise known as Special Registration for Telemedicine Clarification Act of 2018 (the Bill). With the passage of the Bill, health care providers thought that they could breathe a sigh of relief. The Bill requires that the DEA issue the telehealth regulations, which they were asked to write a decade ago, but this time Congress has given them a year to do so. But, there are still some who are wary of whether the DEA will take the proper steps towards activating special registration.
Why Be Skeptical of the DEA?
While this Bill will require the DEA to take action, some are worried about whether this will actually do anything. The Bill does not provide any penalties if the DEA does not comply with the Bill. And, the DEA has not exercised its authority over the past 10 years and has not implemented regulations as per the Ryan Haight Act. Some worry that the lack of enforcement power means the DEA will not have the motivation to start executing procedures and will instead continue to avoid the topic of telehealth.
States Have Taken Action
While the DEA has been dragging its feet for the past ten years, individual states have taken matters into their own hands. In 2017, Michigan passed SB 213, which allows health care professionals to utilize telehealth when prescribing controlled substances, without requiring an in-person examination. In 2018, Connecticut also passed a similar law, specifically for the treatment of psychiatric disabilities or substance abuse disorder. Indiana amended their telehealth law to increases the list of drugs that can be prescribed without an in-person examination. Other states that have passed similar telehealth laws that allow for online prescribing include: Delaware, Florida, New Hampshire, Ohio, Virginia, and West Virginia.
Hawaii has also passed laws surrounding telehealth. While Hawaii’s laws do not plainly allow for remote online prescription of controlled substances, Hawaii Statutes Revised § 329-1 does not differentiate between the remote prescribing of controlled and non-controlled substances. Furthermore, Hawaii Statutes Revised § 453-1.3 only necessitates an in-person examination for the prescription of opioids and medicinal cannabis. Thus, it can be inferred that Hawaii allows for remote prescribing of other controlled substances.
What Happens Now?
The DEA has one year after the enactment of the Special Registration Act to promulgate rules surrounding telehealth. If the DEA does not pass any regulations, Congress will likely have to take further steps to ensure compliance. This could be done through another law, however, Congress would have to look into its other options, including the possibility of restricting funding to the DEA until regulations have been passed. The one-year time limit is a good start, but the DEA has still not taken any action since the passage of the Special Registration Act back in April 2018. It is still undetermined, but seems unlikely, whether the DEA will actually take any steps before its year-long deadline comes to a close next month.