In the COVID-19 era, under relaxed federal emergency orders, licensed clinicians have been able to prescribe opioid analgesics for their patients even if they’ve only ever seen the patient via telehealth, rather than in person.
For providers like Stephen Bekanich, MD, a palliative care physician for Ascension Texas in Austin, this provision allows him to help seriously ill patients without requiring in-person visits that may be difficult for them or could expose them or their caregivers to the virus.
Still, he worries, given ongoing national concerns about prescription drug overdoses, that this privilege might be on shaky ground, although he is not aware of opioid prescribers being targeted by regulators during the current crisis.
But what happens when the current COVID emergency order issued by the Department of Health and Human Services (HHS) expires? Palliative care doctors who have learned how to manage patients remotely via telemedicine may have to return to old ways — including a requirement that they see a patient in person before prescribing opioids.
The Prescribing Situation
The Ryan Haight Online Pharmacy Consumer Protection Act, passed in 2008, included a prohibition on writing prescriptions for controlled substances such as opioids by means of the internet unless the clinician first conducted an in-person exam. It came with a number of exceptions and carve-outs, one of which is for public health emergencies such as the one declared by HHS Secretary Alex Azar, MD, on Jan. 31. It effectively put the Ryan Haight Act provision on hold for the duration of the emergency.
The Drug Enforcement Agency issued an exception allowing prescribing of controlled substances via telemedicine without a prior in-person visit during the pandemic, though it specifies that telephone-only communications are not part of that exception.
CMS has indicated that it will revisit guidelines around telehealth services generally at the time when the emergency order is phased out, Bekanich noted. “But will it address the prescribing situation?”
This question plays out in the context of the other, ongoing national epidemic of prescription opioid overdoses, with federal agencies trying to curb excessive opioid prescribing, said attorney Sarah Churchill Llamas, chair of the healthcare industry group at the law firm Winstead PC in Austin.
“Doctors in general are concerned about prescribing opioids,” she said. The Texas Medical Board has rules for how to establish the patient-doctor relationship, and it should still meet the same standard of care whether virtually or in person. For some regulators, it’s an ongoing question whether it’s even possible to establish a professional relationship with a patient via telemedicine.
Because every state is different, both for opioids and telehealth, Llamas encourages providers to take a close look at existing state law. Patients receiving hospice or palliative care and those with cancer may be treated differently in the regulations, but that is no guarantee the prescribing physician won’t draw regulatory scrutiny, she added. For those who want to practice across state lines, it’s even more complex.
“At the end of the day, even if doctors do everything they’re supposed to, they could still get reviewed by their state medical board. Now that you’re overlaying telemedicine on top of opioid prescribing, I could see where a physician might say: ‘I just don’t feel comfortable going out on a limb with this,'” she said. “My advice, do what’s best for your patients’ care, but plan for the future. You have to know that the relaxation of regulations due to the emergency orders is going to end, and that may be tough for your patients.”
Not a Viable Future Strategy
Llamas recently consulted with Iris Plans, a telehealth-based advance care planning firm, regarding the future of opioid tele-prescribing.
“At Iris, we are doing (virtual) advance care planning for many patients, but some of them could also benefit from medical management,” explained Bekanich, who is a cofounder of Iris Plans. “We wondered if there is a way we could start to do that via telehealth, in multiple states. But we wouldn’t want to start a tele-palliative practice if we couldn’t prescribe opioids remotely for seriously ill patients. After obtaining legal advice from Sarah (Llamas) we decided it won’t be a viable business model.”
Bekanich said his advocacy for tele-prescribing goes only as far as the population he normally sees, patients with a firmly established diagnosis of serious illness. Research suggests they are unlikely to become addicted to opioids in the absence of a prior history of opioid use disorder.
He is also familiar with the mitigation strategies of the addiction management field, such as urine drug screening and patient contracts aimed at minimizing the potential for abuse while still allowing for pain management — which can be incorporated into virtual practice.
“For those facing serious illness who could benefit from opioids, I generally do not start with a urine drug screen. For me it’s more about establishing trust and rapport, getting to a place of comfort with my patients where they’ll talk honestly with me. I want that to be an open conversation, not punitive,” he said, although in a small handful of cases something more prescriptive may be needed.
“The exception for telehealth should be made permanent, for the sake of the patients, not just the convenience of the prescriber,” he added. “Telemedicine is an important capability to have for patients you haven’t seen face-to-face, even though it’s not for everyone. I worry about what happens after COVID. That creates a lot of uncertainty — which is bad for our work.”