Senator Warner Encourages DEA Action on Telehealth & Prescribing

Center for Connected Health Policy

May 2021

A lack of a more permanent fix to the prescribing issue could create hurdles for patients to access treatment to SUD services.

Earlier this month Senator Mark Warner (D-VA) sent a letter to Attorney General Merrick Garland regarding the long-delayed regulations from the Drug Enforcement Agency (DEA) for a telehealth registry to prescribe controlled substances. In the letter, Senator Warner expressed great concern for the delay and that “the DEA’s failure to address this issue means that a vast majority of health care providers that use telehealth to prescribe controlled substances to and otherwise treat their patients have been deterred in getting them the quality care they need.”

The Ryan Haight Act of 2008 allowed for certain exemptions to the use of telehealth to provide controlled substances without the telehealth provider having seen the patient in-person first, however these exemptions are narrowly tailored. Two such exemptions are:
when a public health emergency (PHE) is declared, and
if a provider is registered on a telehealth registry that the DEA will create.
Due to the current COVID-19 PHE, providers now are able to prescribe a controlled substance without an in-person visit, but the exemption will disappear once the PHE is declared over.

In 2018 under the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment (SUPPORT) for Patients and Communities Act, Congress directed the DEA to promulgate final regulations for the registry by the end of 2019. Although a December 2019 regulatory posting indicated the DEA’s intent to publish the rule, the deadline came and went without even draft regulations being released for public comments. In March 2020, a PHE for COVID-19 was declared allowing one of the exceptions for prescribing to be activated. However, the PHE is not slated to last indefinitely and many, including Senator Warner, are looking for a more lasting change. Senator Warner also sent inquiries to the previous administration regarding the status of the registry regulations that went unanswered.

During COVID-19, concern for the ability of patients with substance use disorders (SUD) to access services rose as demands on health services focused on responding to the pandemic and people sheltered in place. While much of the country is beginning to open up again, a lack of a more permanent fix to the prescribing issue could create hurdles for patients to access treatment to SUD services.