Telehealth Prescribing Gridlock Threatens Extension of Pandemic Flexibilities

Over 300 organizations have appealed to the White House and Congress to prolong telehealth controlled substance prescribing rules for an additional two years. Their primary argument is that the Drug Enforcement Administration (DEA) lacks sufficient time to finalize new regulations before the current pandemic-era flexibilities expire. However, extending these rules is complicated by concerns over allowing Schedule 2 substances, such as Adderall, to be prescribed via telehealth.

Telehealth advocates are lobbying Congress to extend these flexibilities for an additional two years. They argue that distinguishing between different classes of drugs is unnecessary given the urgency of the impending expiration. Krista Drobac, the founder of the Alliance for Connected Care, emphasized the difficulty in deciding which patients, such as those with ADHD, narcolepsy, or pain, should have to visit a doctor's office versus using telehealth. She argues that a two-year extension is necessary to balance the need for access to medication and the prevention of drug diversion. Drobac believes that there is insufficient time in Congress's schedule to determine which substances should or should not be prescribed online.

House Republicans are hesitant to include Schedule 2 substances in any telehealth prescribing extensions. Representative Brett Guthrie from Kentucky, chair of the House Energy and Commerce subcommittee on Health, expressed concerns about the potential misuse of Adderall and other Schedule 2 drugs if prescribed via telehealth. Although he supports extending general telehealth flexibilities, he is cautious about including these specific substances. Other House Republicans, such as Dr. Michael Burgess from Texas and Dr. Larry Bucshon from Indiana, have not yet formed an opinion on this issue but generally support telehealth.

A healthcare lawyer familiar with the situation suggested that Congress might opt for a short-term extension of 30 to 90 days to postpone the decision to the next Congress. Alternatively, Congress could implement a two-year extension, aligning with other expiring flexibilities.

The new rule on telehealth prescribing, currently held up at the White House Office of Management and Budget (OMB), has faced several delays. The OMB has attempted to release the rule, but the Department of Health and Human Services (HHS) has blocked it multiple times. According to a lobbyist, this stalemate is unlikely to be resolved without higher-level intervention. The proposed rule excludes Schedule 2 substances, requires providers to prescribe half of all controlled substances in person, and mandates that prescribers check every state’s prescription drug monitoring programs before issuing a prescription.

Despite significant media attention, the DEA has not contested any claims regarding its pending telehealth prescribing rule. Stakeholders are keen to find ways to circumvent these restrictions. The DEA and HHS could potentially extend the pandemic-era prescribing flexibilities if they determine that prescribing via telehealth is consistent with effective control against drug diversion and public health safety. This approach was previously used to maintain flexibilities when the public health emergency concluded.

However, the DEA appears reluctant to extend the current flexibilities. In its March 2023 proposed rulemaking, the DEA stated that Congress has not authorized the prescription of Schedule 2 substances via telehealth. The rule claims that excluding Schedule 2 and narcotic controlled substances aligns with Congress's limitations and that allowing such prescriptions during the ongoing opioid epidemic would pose significant risks to public health and safety.

Several sources indicated that Attorney General Merrick Garland could intervene to force the DEA to extend the current flexibilities. Tensions between the DEA and the Department of Justice (DOJ) have already been high, particularly regarding the rescheduling of marijuana, which the DEA opposed but was compelled to accept by the DOJ. The DEA might face a similar situation with Schedule 2 drugs. Garland did not respond to requests for comments by the time of publication.