The Ryan Haight Act—Generally, teleprescribing is limited under the Ryan Haight Online Pharmacy Consumer Protection Act of 2008, which restricts the prescribing of controlled substances over the internet, but does not consider the use of email or telephone as “telemedicine.”
This law has become a barrier to providers engaged in a variety of practice areas who prescribe controlled substances for seizures, chronic pain or other patient medical conditions, because it requires any provider issuing a prescription for a controlled substance to be in a DEA-registered hospital or clinic and the prescriber must registered with the DEA in every state where a patient is located.
The DEA is expected to release a new, telemedicine registration rule to decrease restrictions on teleprescribing across state lines. It currently provides exceptions only to its registration requirement for teleprescribing under the Veterans Administration benefit plans, for substance abuse treatment or in emergencies. However, the DEA recently released guidance giving flexibility for teleprescribing subject to several conditions, but only for use during the emergency period.
CMS regulations—Since 2018, the CMS has significantly expanded telemedicine services that may be reimbursed by Medicare and now includes remote check-ins, remote patient monitoring and interprofessional or internet consultations. The CMS announced that, starting this year, Medicare Advantage plans can offer patients telehealth and telemental health services as basic benefits under their plans. These Part C telemedicine benefits can be used from any location, including the patient’s home.
With respect to Part B reimbursement for telemedicine services, except for a few limited exceptions, all telemedicine services must originate from an in-person, face-to-face encounter. This is called the originating site requirement and provides that an originating site fee be paid to the originating facility that has a patient consultation on site prior to the start of any telemedicine services. The originating site facility fee is a separately billable Part B payment and is subject to post-payment review.
Note: On March 6, the Telehealth Services During Certain Emergency Periods Act gave the HHS secretary the authority to expand the use of telehealth services during the coronavirus emergency period. As a result, the secretary waived or modified standard restrictions on patient originating sites and telephone use when the telehealth services are furnished by a physician or non-physician practitioner. On April 30, CMS issued a second expansion of telehealth services for certain practitioners and for several types of reimbursement, notably increasing the rate for telephone visits retroactive to March 1, 2020.
