DEA Gives Providers Leeway to Use Telehealth for Substance Abuse Care

With the Coronavirus pandemic limiting in-person treatment, healthcare providers are using telehealth to ensure patients dealing with substance abuse issues have access to care.

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One of the more popular (and fast-growing) methods of treatment is Medication-Assisted Treatment (MAT) therapy, which combines medication with mental health treatments. During the pandemic, federal officials have relaxed certain telehealth requirements to give providers more freedom to use connected health to treat patients.

Under the Ryan Haight Online Pharmacy Consumer Protection Act of 2008, certain healthcare providers were allowed to prescribe controlled substances for treatment as long as they’d first had an in-person examination with the patient. That law offered several instances in which the in-person requirement could be waived. On March 16, the US Drug Enforcement Agency (DEA) waived that requirement under by invoking the public health emergency exception.

While the public health emergency exemption helps provider in the short term, it won’t remain in effect once the pandemic has passed. Many providers are worried that the telehealth treatments they’re using now will be discontinued after the emergency, putting their patients at risk of relapse.

Telehealth advocates have long lobbied for a permanent solution, and seemed to have been close to achieving that before COVID-19.

The Ryan Haight Act includes a provision allowing the DEA to create a special registration process for healthcare providers wishing to use telehealth without the in-person requirement. In 2018, the passage of the Special Registration for Telemedicine Act of 2018, which was part of the SUPPORT for Patients and Communities Act, gave the DEA an October 2019 deadline to set the rules for that registration process.

That deadline passed without action, and in November the Justice Department announced its intention to issue a proposed rule to create the registration process – but that hasn’t happened yet. This past January, Virginia Senator Mark Warner sent a letter to the DEA asking them to follow through with those plans.

The pandemic has changed that timeline, giving providers the leeway they’ve been asking for to use telehealth and mHealth but for a limited time.

On March 4, the DEA issued a notice of proposed rulemaking that allows registered narcotic treatment programs (NTPs) to use “mobile components … to dispose narcotic drugs in schedules II-V at a remote location for the purpose of maintenance or detoxification treatment would not be required to obtain a separate registration for a mobile component.” Some thought this was the federal action they’ve been waiting for, and Warner even issued a press release before quickly retracting it.

The DEA’s action of March 16, which clarified the public health emergency exemption, made that more clear.

More recently, according to a blog written by Sunny J. Levine and Emily H. Wein of the Foley & Lardner law firm, the DEA has taken further steps to promote virtual care for opioid use disorder (OUD) treatment.

On March 19, the Substance Abuse and Mental Health Services Administration (SAMHSA) issued guidance allowing Opioid Treatment Programs and certified care providers to use prescribed drugs and conduct treatments over the phone without first meeting in person. Shortly thereafter, Levine and Wein wrote, the DEA joined SAMHSA in issuing a letter allowing “’authorized practitioners’ to prescribe buprenorphine to new and existing OUD patients for maintenance or detoxification treatment on the basis of telehealth examination, which may include a telephone voice-only evaluation - without the need for a prior in-person exam.”

“The DEA Letter allows authorized practitioners the added flexibility of using audio-only modalities (i.e., telephone) - instead of audio-visual, real-time, two-way interactive communication system - which is required to prescribe controlled substances via telemedicine, pursuant to the aforementioned emergency exception to the federal Ryan Haight Act,” Levine and Wein said.

Authorized practitioners are defined as OTP providers, which are registered with the DEA, and care providers who have received a waiver from SAMHSA to prescribe or dispense buprenorphine for OUD treatment in a non-OTP setting.

Finally, Levine and Wein point out that each state has its own telehealth laws – some banning the use of telehealth to prescribe controlled substances – and many have issued emergency directives regarding the use of telehealth during the pandemic. So it’s up to the care provider to research all relevant federal and state laws before taking advantage of the DEA and SAMHSA guidance.

All these actions give certain care providers the ability to use telemedicine and mHealth tools to continue and enhance substance abuse treatment during the pandemic, enabling patients to get the care they need while at home.