Update on Prescribing via Telehealth: Potential Changes in the Drug Enforcement Administration’s Guidelines

Prescribing practices via telehealth are currently at a critical juncture, with many virtual providers waiting to hear what the new guidelines from the Drug Enforcement Administration (DEA) will be.

Psych Congress Network spoke with Edward Kaftarian, MD, executive chairman, Orbit Health Telepsychiatry, on-site at Psych Congress 2023 to hear his thoughts on the potential approaches to telehealth prescribing the DEA may implement once the Ryan Haight Act waivers expire on November 11, 2023.

 For more expert insights on practicing psychiatry in a virtual setting, visit our Telehealth Excellence Forum.

Read the Transcript

Edward Kaftarian, MD: Hello, my name is Dr. Edward Kaftarian. I'm a board certified psychiatrist and executive chairman of Orbit Health Telepsychiatry. I'm also on the steering committee for Psych Congress.

One of the most important things to think about when you're prescribing controlled substances via telehealth is the Ryan Haight Online Consumer Protection Act. And that's something that was created by Congress, it was an act of Congress. Years ago. Ryan Haight was a teenager who obtained Vicodin on the internet without a valid prescription because he never saw a doctor. And so this Consumer Protection Act, the Ryan Haight Act, was intended to help prevent pill mills from forming. So pill mill meaning, a company that issues medications without valid prescriptions, and the medication is used in inappropriate ways.

One of the unintended consequences of the Ryan Haight Act is that it severely inhibited the ability for doctors to prescribe controlled substances via telemedicine. Now, there are seven exceptions to the in-person rule, meaning the in-person requirement for you to prescribe controlled substances, you need to see the patient in person at least once. But there are telehealth exceptions to this. One of them was the public health emergency. So the public health emergency allowed prescribers to prescribe controlled substances without having first seen the patient in person. And this was actually a boon to telemedicine and was very welcome. But unfortunately, as the public health emergency ended, some of these waivers, some of these exceptions ended and that put everybody in a bind. And what happened was a lot of people who were prescribing medication, controlled substances to patients online, were not able to do that.

But now the DEA has extended those waivers, and the current waiver has been extended through November 11th, 2023. But then after that, any new patients will go back to the old restrictions. And those restrictions mean that you would have to see the patient in person in order to continue prescribing controlled substances to them.

The DEA has proposed a new set of rules after the public health emergency, and they propose three pathways to prescribing controlled substances. The first pathway is of course, seeing the patient in person, one time, and that's all that's needed in the patient's lifetime for you as the prescriber, to prescribe controlled substances. Now, of course, if another provider starts to see the patient, then there's a confusion about whether that appointment in person applies. And I think the DEA would say that it does not apply.

The second pathway is a short-term prescription, that would be a 30-day prescription for controlled substances that are in Schedule three through five. And of course, that doesn't take into account ADHD stimulant medications that are schedule two. So that doesn't help for people that are on ADHD medications. And in that second pathway, buprenorphine is also allowed.

The third pathway would be if there's a referral from a DEA registered practitioner who's seen the patient in person, they can refer the patient to you and you can prescribe a controlled substance to that person as long as you receive the DEA registered practitioner's referral. But there are a lot of strings attached to that third pathway. One of the strings attached is that the practitioner that's referring the patient, they must refer to a specific provider and that provider must have an NPI number documented in the referring practitioner's records. And then also the person receiving the patient, receiving that referral, they need to document specifically the NPI number of the referring practitioner.

So if this sounds confusing, it is. And the DEA is conducting listening sessions where the public can make the case for other ways where we can circumvent these really difficult rules around telemedicine and controlled substances. And those listening sessions are happening in the fall of 2023. And so we hope to receive an update from the DEA. Specifically, we'd like to see a special registration process for telemedicine, that is not currently the case right now. And we are hoping and expecting the DEA to produce a special registration process for controlled substances via telehealth.

Edward Kaftarian, MD, is a preeminent authority in the field of Telepsychiatry. He holds a distinguished seat on the Telepsychiatry Committee of the American Psychiatric Association and is a member of the Steering Committee for PsychCongress, the United States' largest independent mental health educational conference. Additionally, Dr. Kaftarian is a prominent speaker on the rules and regulations governing telehealth. Dr. Kaftarian completed his psychiatry training at the prestigious Johns Hopkins University and holds board certifications in Psychiatry, Forensic Psychiatry, and Addiction Medicine.