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Washington Law Review

Abstract

The Ryan Haight Online Pharmacy Consumer Protection Act (Ryan Haight Act) prohibits controlled substance tele-prescribing when it occurs without a preliminary in-person medical evaluation. This Article details the Ryan Haight Act’s consequences for the practice of telemedicine in general and opioid addiction treatment in particular. In doing so, it builds on literature exploring the tension between the federal criminal regulation of controlled substance prescribing and the management of large-scale public health crises, particularly the opioid overdose crisis.

By restricting the tele-prescription of certain controlled substances used for opioid addiction treatment, the Ryan Haight Act limits access to care for a highly vulnerable patient population that surpasses six million people nationwide. This issue has persisted despite telemedicine proving to be as effective as in-person health care for this form of treatment.

Furthermore, U.S. telemedicine governance has evolved since the passage of the Ryan Haight Act, with several states adopting their own restrictions on controlled substance tele-prescribing. Using Medicare claims data and a dataset of state telemedicine policies, and leveraging the federal enforcement waiver of the in-person medical evaluation rule during the coronavirus (COVID-19) pandemic, this Article investigates state policymaking behavior and its health service implications. Forty-two states and the District of Columbia affirmatively liberalized controlled substance tele-prescribing during the COVID-19 pandemic, while eight states imposed their own in-person medical evaluation requirements. Patients in states with restrictions were twenty-two percent less likely to start opioid addiction treatment via telemedicine than patients in states without restrictions. Conceptually, these findings illuminate the contours and porosity of states’ autonomy in the regulation of medicine. Practically, these findings reveal that changes in federal controlled substance policy will be insufficient to maximize treatment access if they fail to account for state tele-prescribing restrictions.

Against this backdrop, this Article offers a blueprint for controlled substance law that seeks to improve access to opioid addiction treatment, and that accounts for the variation in postures that the federal and state governments have adopted toward controlled substance teleprescribing. It proposes legislative, regulatory, and judicial remedies that share a common purpose: shielding clinicians from law enforcement actions when tele-prescribing opioid addiction medications.

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