Loyola University Chicago School of Law, JD 2020
COVID-19 has rapidly changed the healthcare field unlike anything has before. With the continued spread, healthcare providers have started to adopt telehealth as a way to access patients and continue to provide quality care, without breaking their self-isolation. One avenue that has long been closed off for physicians has been online prescribing, but COVID-19 appears to be changing even that.
What is the Ryan Haight Act?
In 2008, Congress passed the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 (“the Ryan Haight Act”), as part of the Controlled Substances Act, and it prohibits form-only online prescribing for controlled substances. The Ryan Haight Act requires physicians to have, at minimum, one in-person examination of a patient prior to prescribing, with very few limited exceptions.
However, the Ryan Haight Act does not per se prohibit the use of prescribing via telehealth. There are certain exceptions that fall within the “practice of telemedicine,” though they are quite restrictive. For example, the practice of telemedicine can involve prescribing when the patient is in the physical presence of a practitioner who is acting in their normal course of practice. But these exceptions are very limited, and they do not take into consideration all the different forms of telehealth that exist, and some are only focused on a particular subset of providers. The largest drawback to the exceptions is they do not allow a patient to receive a prescription within their own home.
Due to the limits of these exceptions, Congress tasked the Drug Enforcement Administration (“DEA”) with promulgating rules to allow physicians the ability to prescribe online, called the “Special Registration to Engage in Practice of Telemedicine.” While Congress wanted to reduce the amount of prescribing without in-person exams, it also saw the value of telehealth and the advantage for patients to be able to receive prescriptions online.
Ten years passed
Despite the congressional order to create this registration process, ten years passed, and the DEA had not created any process that would allow telehealth prescription. Congress continued to see the value of telehealth, and in 2018, it passed the Special Registration for Telemedicine Act of 2018 (“the Special Registration Act”) as part of the SUPPORT for Patients and Communities Act. The Special Registration Act placed a deadline on the DEA to create this registration process for providers by October 24, 2019.
The DEA missed the October deadline, but issued its own statement that it was implementing its own deadline for December 2019. But it missed this deadline as well.
How COVID-19 comes into play
COVID-19 has caused an international shutdown of all fields, including healthcare. But individuals still require care, so telehealth has started to become the norm as more and more providers are making the switch. Because providers and patients are no longer meeting in-person due to social distancing, it can be difficult to comply with the Ryan Haight Act.
The DEA therefore issued a statement that for as long as Secretary Azar has declared a public health emergency, DEA-registered practitioners could issue prescriptions for all Schedule II-IV controlled substances to their patients without having an in-person meeting first. But the DEA had some stipulations, and providers have to meet the following conditions:
- “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; and
- The practitioner is acting in accordance with applicable Federal and State laws.”
Federal versus state law
Despite the expansion at the federal level, there is still a conflict with state laws. The DEA’s statement did not supersede state laws, and providers are still expected to comply. Thus, if a state prohibits online prescription through telehealth, the provider may not do so despite the DEA’s expansion.
There are states that already have an expansive allowance for online prescribing, though it is important to keep in mind the ways they vary. For example, in 2017, the Ohio Medical Board adopted rules to allow provider prescribing via telehealth, though there are different requirements for physicians depending on whether the provider is prescribing a drug or a controlled substance. But Michigan, which also passed a law in 2017, allows online prescribing, but this is only for drugs and not controlled substances.
What will happen after COVID-19?
The DEA has made a statement that this is a temporary allowance that will only be valid so long as there is a public health emergency. Thus, providers cannot depend on this allowance once the COVID-19 pandemic has ceased. But some believe there is hope that this may speak towards the DEA finally promulgating the rules that they were tasked with over.