In the COVID-19 era, under relaxed federal emergency orders, licensed clinicians have been able to prescribe opioid analgesics for their patients even if they’ve only ever seen the patient via telehealth, rather than in person.
The Ryan Haight Online Pharmacy Consumer Protection Act, passed in 2008, included a prohibition on writing prescriptions for controlled substances such as opioids by means of the internet unless the clinician first conducted an in-person exam. It came with a number of exceptions and carve-outs, one of which is for public health emergencies such as the one declared by HHS Secretary Alex Azar, MD, on Jan. 31. It effectively put the Ryan Haight Act provision on hold for the duration of the emergency.
The Drug Enforcement Agency issued an exception allowing prescribing of controlled substances via telemedicine without a prior in-person visit during the pandemic, though it specifies that telephone-only communications are not part of that exception.
But what happens when the current COVID emergency order issued by the Department of Health and Human Services (HHS) expires? Palliative care doctors who have learned how to manage patients remotely via telemedicine may have to return to old ways — including a requirement that they see a patient in person before prescribing opioids.
CMS has indicated that it will revisit guidelines around telehealth services generally at the time when the emergency order is phased out. However it is not known if it address the prescribing situation.
This question plays out in the context of the other, ongoing national epidemic of prescription opioid overdoses, with federal agencies trying to curb excessive opioid prescribing.
Because every state is different, both for opioids and telehealth, providers need to take a close look at existing state law.
Attorney Sarah Churchill Llamas, chair of the healthcare industry group at the law firm Winstead PC in Austin said “At the end of the day, even if doctors do everything they’re supposed to, they could still get reviewed by their state medical board. Now that you’re overlaying telemedicine on top of opioid prescribing, I could see where a physician might say: ‘I just don’t feel comfortable going out on a limb with this.”
“My advice, do what’s best for your patients’ care, but plan for the future. You have to know that the relaxation of regulations due to the emergency orders is going to end, and that may be tough for your patients.”