Drug Enforcement Administration is more than a decade overdue to finalize rules allowing doctors to prescribe controlled substances via telehealth

WASHINGTON – U.S. Sen. Mark R. Warner (D-VA) today (May 3rd, 2021) urged the Biden administration to finalize regulations long-delayed by prior administrations allowing doctors to prescribe controlled substances through telehealth.

“I am very concerned that – despite repeated outreach from myself and others in Congress – the previous Administration did not take long-term action to address this issue,” wrote Sen. Warner in a letter to Attorney General Merrick Garland and Drug Enforcement Administration Acting Administrator Chris Evans. “I also recognize that much of this delay has been the result of previous Administrations and I hope to work with you all on a new approach that best serves patients.”

In January 2020, Warner similarly urged the Trump administration to finalize the long-awaited rules to expand the use of telehealth services but never received a response.

“The COVID-19 pandemic has made clear the importance of increased access to telehealth services and providers across the country continue to be frustrated there is no long-term solution for them to provide adequate care to their patients,” wrote Sen. Warner. “The DEA’s failure to promulgate the rule has meant that – despite Congress’ best efforts – millions of patients could be left without access to long-term treatment via telehealth.”

While the Ryan Haight Act of 2008 prohibited the delivery, distribution, or dispensing of a controlled substance by means of the internet, the law also required the DEA to establish rules allowing certain providers to prescribe and treat their patients without an in-person visit. Despite that requirement, and the passage of several subsequent bipartisan laws reiterating that directive, more than ten years later, the DEA has still not finalized the regulations allowing for prescriptions to be issued following a telehealth appointment.

Sen. Warner noted in today’s letter, “In practice, 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. These restrictions have been temporarily waived during the COVID-19 public health emergency, and I welcome that, but patients and providers need a more permanent and long-term solution to this long-delayed rulemaking.”

Sen. Warner has been a longtime advocate for increased access to health care through telehealth. Last week, he reintroduced legislation to expand coverage of telehealth services through Medicare, make permanent COVID-19 telehealth flexibilities, improve health outcomes, and make it easier for patients to safely connect with their doctors. Last year, during the height of the COVID-19 crisis, Sen. Warner sent a letter to Senate leadership calling for the permanent expansion of access to telehealth services. In 2018, Sen. Warner successfully included a provision to expand telehealth services for substance abuse treatment in the Opioid Crisis Response Act of 2018. In 2003, then-Gov. Warner expanded Medicaid coverage for telemedicine statewide, including evaluation and management visits, a range of individual psychotherapies, the full range of consultations, and some clinical services, including in cardiology and obstetrics. Coverage was also expanded to include non-physician providers. Among other benefits, the telehealth expansion allowed individuals in medically underserved and remote areas of Virginia to access quality specialty care that isn’t always available at home.

The full text of the letter is below.

Dear Attorney General Garland and Acting Administrator Evans:

I am writing to follow up on my January 2020 letter to the Drug Enforcement Administration (DEA) regarding implementation of critical provisions in the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 (Ryan Haight Act) (Public Law 91-513) that ensure patients can successfully access medical treatment via telehealth. I am very concerned that – despite repeated outreach from myself and others in Congress – the previous Administration did not take long-term action to address this issue. I also recognize that much of this delay has been the result of previous Administrations and I hope to work with you all on a new approach that best serves patients.

As you may know – the Ryan Haight Act prohibits the sale of controlled substances without at least one in-person examination by a health care provider, but also directs the DEA to draft rules exempting certain health care providers from this prohibition. The spirit and clear intent of this law is to prevent the illicit use and sale of dangerous controlled substances online while maintaining the ability for legitimate healthcare providers to treat patients in need.

In 2018, I worked with my colleagues in Congress to further clarify this intent by passing the SUPPORT for Patients and Communities Act (SUPPORT Act) (Public Law 115-271). That legislation includes a provision I authored to enable Medicare-eligible individuals suffering from substance use disorder to be diagnosed and treated via telehealth. However, providers treating many of these patients via telehealth are often handicapped by the DEA’s delayed rulemaking and unable to use telehealth to prescribe them the medications they need.

It has now been more than 10 years since the Ryan Haight Act mandated the DEA establish a rule ensuring health care providers can successfully prescribe controlled substances via telehealth, but the DEA still has not acted. The SUPPORT Act again mandated the DEA issue rulemaking by October 2019 and more recently the Fiscal Year 2021 final appropriations report requested DEA establish these rules.

In practice, 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. These restrictions have been temporarily waived during the COVID-19 public health emergency, and I welcome that, but patients and providers need a more permanent and long-term solution to this long-delayed rulemaking.

The COVID-19 pandemic has made clear the importance of increased access to telehealth services and providers across the country continue to be frustrated there is no long-term solution for them to provide adequate care to their patients. The DEA’s failure to promulgate the rule has meant that – despite Congress’ best efforts – millions of patients could be left without access to long-term treatment via telehealth.

I am requesting that DEA act as soon as possible to promulgate rulemaking on this issue. I am also requesting that, in the interim, DEA provide my office with an update on its plan and timeline to promulgate such rules. Thank you in advance for your attention to this request and I look forward to hearing back from you.

Sincerely,