Portman, Whitehouse Urge DEA and HHS to Extend Americans’ Access to Telehealth Once the COVID-19 Public Health Emergency is Terminated


Access to Telehealth will Allow Those Suffering from Substance Use Disorders Easier Access to Critical Medications


April 1, 2022 | Press Releases

WASHINGTON, DC – U.S. Senator Rob Portman (R-OH) and Sheldon Whitehouse (D-RI) today sent a letter to Administrator Anne Milgram of the U.S. Drug Enforcement Administration (DEA) and Secretary Xavier Becerra of the Department of Health and Human Services (HHS), urging the agencies to use their authority under the Ryan Haight Act to ensure Americans can continue to access important medication, such as Medication Assisted Therapies (MAT) for substance use disorder and other necessary drugs, via telehealth once the COVID-19 public health emergency ends. Under the Ryan Haight Act, an in-person examination is required in order to prescribe controlled substances such as buprenorphine, which is commonly used in MAT. In March 2020, that requirement was suspended due to the COVID-19 pandemic, allowing providers to prescribe MAT and other necessary drugs via telehealth. Research shows that this flexibility has been effective in expanding treatment for substance use disorders.

“Emerging research shows that the use of telehealth to prescribe buprenorphine during the pandemic, as permitted under this waiver, increased access to substance use treatment.  We have heard from countless substance use providers in our home states who describe this waiver as a ‘game changer’ in expanding access to treatment for individuals with substance use disorder and combatting the current surge of drug overdoses,” the senators continued.

Senators Portman and Whitehouse have long worked to make this access permanent – they introduced the Telehealth Response for E-prescribing Addiction Therapy Services (TREATS) Act in June 2020 to support the expansion of telehealth services for substance use disorder treatment. The bill would build upon the Trump Administration’s action to waive regulatory restrictions for accessing care in the wake of the COVID-19 pandemic. The TREATS Act would extend these telehealth flexibilities by making permanent key waivers, including the ability to prescribe MAT and other necessary drugs without needing a prior in-person visit and the ability to bill Medicare for audio-only telehealth services.

You can read the full letter below or here.

Dear Administrator Milgram and Secretary Becerra:

We urge the Drug Enforcement Administration (DEA) and the Department of Health and Human Services (HHS) to use its authority under the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 (Ryan Haight Act) (Public Law 91-513) to issue a rule that will ensure patients can continue to access vital medication via telehealth once the COVID-19 Public Health Emergency (PHE) is terminated. Prior to the PHE, patients could not access medication-assisted treatment via telehealth, leaving gaps in access and exacerbating disparities in substance use disorder treatment. Waivers allowing telehealth prescribing during the pandemic have addressed these barriers and we encourage the agency to make them permanent.

According to provisional data from the Centers for Disease Control and Prevention, an estimated 105,752 Americans died from a drug overdose between October 2020 and October 2021—a new record. Treatment for substance use disorder, including evidence-based medication-assisted treatment, can help move individuals towards recovery.  However, a variety of factors, such as stigma and inadequate access to transportation, have historically limited access to treatment.  The 2020 National Survey on Drug Use and Health found that, among individuals aged 12 or older in 2020 with a substance use disorder diagnosis in the past year, only 6.5% received any substance use treatment.  Of these individuals who received treatment, just under one-third received medication assisted treatment for opioid misuse.

Consistent telehealth access can help overcome these barriers.  The Ryan Haight Act generally prohibits health care providers from prescribing controlled substances—including drugs prescribed for medication-assisted treatment, such as buprenorphine—without at least one in-person examination.  DEA and HHS can create an exception through joint regulation as long as it is “consistent with effective controls against diversion and otherwise consistent with the public health and safety.”  Congress previously directed the agencies to issue such rules twice since the passage of the Ryan Haight Act in 2008—in the SUPPORT for Patients and Communities Act (Public Law 115-271) and the Consolidated Appropriations Act of 2021 (Public Law 116-68).

In March 2020, important action was taken by the Substance Abuse and Mental Health Services Administration and DEA to waive the Ryan Haight Act in-person examination requirement for the duration of the COVID-19 PHE, thereby permitting the initial consultation for the prescription of a Schedule II, III, or IV drug to be conducted via telehealth.  This waiver increased access to buprenorphine and other drugs used to treat substance use disorder during the COVID-19 pandemic.

Emerging research shows that the use of telehealth to prescribe buprenorphine during the pandemic, as permitted under this waiver, increased access to substance use treatment.  We have heard from countless substance use providers in our home states who describe this waiver as a “game changer” in expanding access to treatment for individuals with substance use disorder and combatting the current surge of drug overdoses.  However, this important flexibility will end with the termination of the PHE in the absence of agency regulatory action to make this waiver permanent for Schedule III and IV drugs.

We appreciate the role that the DEA plays in preventing, detecting, and investigating the diversion of controlled substances.  We continue to believe this waiver can be made permanent in a manner that mitigates the risk of diversion and maintains public health and safety as required by statute. 

We ask that the DEA and HHS act as soon as possible to promulgate rulemaking on this issue.  In the interim, we ask that you provide our offices with an update on the plan and timeline to promulgate such rules by April 15, 2022.  Thank you in advance for your attention to this request and we look forward to hearing back from you.

Sincerely,

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