The DEA and Telemedicine

by Trevor Rachko MSN | April 26, 2023

Let us dispel this fiction about the impending telemedicine apocalypse. Many patients and providers alike are rightfully concerned, but media sensationalism is leading to far more concern than warranted. This is evident even among some rather famous and typically reliable names within the fitness and medical social media spheres. Of course, I'm not a lawyer, just a barefoot peasant from Oregon who did some reading because this would affect my own practice as a psychiatric provider.

While investigating this would impact my practice, I found it remarkably helpful to have a general understanding of the history of the DEA’s regulations on the prescribing of controlled substances via telemedicine. Prior to the so-called “public health emergency” regarding COVID in 2020, if you wanted to receive a controlled substance prescription for the purposes of ongoing treatment, you had to see your provider in person, once. Not once per month, not once per quarter, not once per year, but once. This was the result of the Ryan Haight Act that became law in 2008. Upon the declaration of the aforementioned public health emergency, the relevant effects of this law were put on hold.

This hold is coming to an end, or at the very least it is changing form. With the DEA’s public commenting period having concluded at the end of March, and their shifting to a review period, barring intervention from the United States Congress, we are presently at the their mercy. Should the worst-case scenario come to pass and all of the DEA’s proposals are enacted, there would still be a grace period for those with affected prescriptions. Additionally, there are ways to continue your care without interruption (in no particular order):

1.) See your provider in person, once, then resume telemedicine thereafter.

2.) Change to a local provider indefinitely.

3.) Have a video call with one provider and yourself in-person, with the telemedicine provider present via video.

4.) Go see your PCP (primary care provider) or other provider in-person, and have that provider refer you to your telemedicine provider. The difference here being that you must have both the referring and receiving providers' NPI (national provider identification) numbers listed on the referral (which is not typically done when sending referrals).

The first two options are rather self-explanatory. The third option is an oddball and seems to be the most convoluted option with a specific set of circumstances that aren't relevant to most people, so I won’t elaborate on it here. The fourth option is what I have seen largely omitted from other reports regarding this situation. A press release on the DEA’s official website from February 24th of this year clearly explained this by stating “The proposed rules would also not affect: Telemedicine consultations and prescriptions by a medical practitioner to whom a patient has been referred, as long as the referring medical practitioner has previously conducted an in-person medical examination of the patient.” I would reckon that this offers the most realistic and direct path forward for the majority of people affected.

We all know that PCPs these days act as gatekeepers for the specialists and whether we consider this to be a good or a bad thing, people can use this to their advantage. In my experience, I have never heard of a PCP ever refusing to send a referral for anything, and it makes perfect sense – the PCP is short on time, so when you present with a simple request such as a referral, this is likely a relief to your PCP. From a PCP’s perspective, there are only downsides to refusing a referral in terms of professional liability. The key here is to ensure that the referrals are sent in the proper manner indicated by the DEA, with these being listed in the DEA’s official proposal documents. I would imagine PCPs will become well-versed at these referrals quite quickly.

Referrals and nuance aside, it is worth emphasizing that if you have ever had an in-person appointment with your provider in the past, none of this will affect you. Nor would it if your medication regimen does not include a controlled substance, such as if you take Clomid and/or HCG without testosterone for hormone optimization purposes.

Regardless of your medication regimen and how you would be affected, I have been able to come up with five possible directions that all of this could go:

1.) The DEA kicks the can down the road another given number of months.

2.) The DEA folds like cardboard in the rain and gives up, making the Ryan Haight Waiver permanent.

3.) The DEA proposes amendments to their original proposal and the debate continues.

4.) The United States Congress intervenes in a way that somehow changes the proposed rules.

5.) The DEA ignores the tens of thousands of comments and puts things into effect as-proposed.

We undoubtedly find ourselves in an uncertain and inconvenient position, but it is my hope that this article helps you rest a little easier and formulate a plan that will be best for your individual situation.

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