American Telemedicine Association Letter Offers Recommendations on DEA Special Registration for Telemedicine Prescribing of Controlled Substances

On January 9, 2019, the American Telemedicine Association (ATA) issued a policy comment letter to the U.S. Drug Enforcement Administration (DEA), advocating for provider-friendly changes to federal controlled substance prescribing rules. Note: the firm’s Telemedicine & Digital Health Industry Team participated in the ATA’s special workgroup to develop the recommendations.

The letter offers recommendations for DEA’s forthcoming Ryan Haight Act special registration regulation to allow psychiatrists and physicians to prescribe controlled substances via telemedicine without the need for an in-person exam. The special registration is one of the seven “practice of telemedicine” exceptions under the Ryan Haight Act, but to date it has not been activated.

The ATA’s recommendations follow the President’s signing into law the Special Registration for Telemedicine Act of 2018, part of the larger SUPPORT for Patients and Communities Act. The law requires the DEA to promulgate final regulations specifying: (a) the limited circumstances in which a special registration under this subsection may be issued; and (b) the procedure for obtaining a special registration under this subsection. The law sets a deadline of October 24, 2019 for promulgation of these new regulations.

To Congress’ credit, the final version of the SUPPORT Act notably changed a clause contained in one of the initial drafts. The draft bill originally required the DEA to issue interim final regulations. Had that version been signed into law, the DEA would have been directed to simply publish the rule with an arbitrary specified effective date, without a “first draft” in the form of a proposed rule and without considering public comment in response to a proposed (which is exactly what happened 10 years ago when DEA published interim final regulations implementing the Ryan Haight Act on April 13, 2009). Fortunately, the final version of the bill signed into law instead sets a one-year deadline for DEA to promulgate final regulations. And the law affords DEA ample time to issue proposed rules, allow a 60 or 90-day period for the public to submit comments, and then promulgate the final regulations after considering those comments.

The recommendations are designed to strike a balance between the country’s great need for additional behavioral health resources, commonly accepted clinical practices, the evolving landscape of telemedicine technologies, and DEA’s charge to protect the safety and wellbeing of citizens via drug diversion. The letter proposes five key recommendations:

Update the current DEA registration process to specify distinctions between traditional and telemedicine prescribing privileges.
Allow both sites and prescribers to register for telemedicine.
Allow for a public comment period within the one-year timeline for special registration activation.
Ensure that telemedicine special registration is not restricted to any single discipline.
Allow telemedicine prescribers to apply for DEA registration numbers in multiple states at once.

The ATA letter notes: “The telemedicine community has long advocated for activation of special registration to relieve the regulatory impasse that confronts many telehealth prescribers. Activation of the special registration provision will not only allow additional prescribers to use telemedicine to combat the opioid crisis, but also provide the broad range of medical disciplines an avenue to expand access to quality care.”

We will continue to monitor progress of the DEA special registration and other developments on the Ryan Haight Act, so please check back for updates.

For more information on telemedicine, telehealth, virtual care and other health innovations, including the team, publications, and other materials, visit Foley’s Telemedicine & Digital Health Industry Team.

Disclaimer

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.