The DEA and Telemedicine | Trevor Rachko


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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