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The Opioid Crisis: Declaring a National Emergency and the Effect on Remote Prescribing through Telemedicine

On July 31, 2017, President Donald Trump’s Commission on Combating Drug Addiction and the Opioid Crisis recommended that he declare the opioid epidemic a national emergency. In August 2017 and again on October 16, 2017, the president indicated he would declare the opioid crisis a national emergency. While it is apparent that the nation is suffering a drug overdose and opioid-specific crisis, the question remains as to what effect such a declaration would have on combatting the crisis.

The president’s powers to declare a national emergency arise from the Stafford Act, and once a national emergency is declared, it enables 1) access to US Department of Homeland Security ‒ Federal Emergency Management Agency (FEMA) funding, with states able to request grants for the specific purposes of treating opioid addiction; 2) the ability to re-appropriate federal agency workers, such as those employed by the agencies under the US Department of Health and Human Services (HHS) umbrella, to specifically research and treat opioid addiction; and 3) waiver of federal Medicaid regulations to provide additional aid to beneficiaries, ensuring sufficient health care items and services are available to meet the needs of beneficiaries. Such a declaration would undoubtedly open up both federal and state governments to formulate a comprehensive, unified strategy to combat the opioid epidemic sweeping the nation.

A declaration of national emergency could also eliminate one of the key barriers to the use of telemedicine as a tool in the fight against opioid addiction. As background, the Ryan Haight Online Pharmacy Consumer Protection Act of 2008(the Haight Act) requires a telemedicine provider who is prescribing a controlled substance to a patient to perform an in-person medical evaluation of the patient prior to prescribing a controlled substance, unless one of the narrow telemedicine exceptions set forth in the Haight Act applies. The declaration of the opioid crisis as a national emergency would trigger one of these telemedicine exceptions to the Haight Act, allowing providers to remotely prescribe controlled substances to patients without first conducting an in-person visit. This in turn would increase the ability of patients, particularly those in rural areas, to gain access to a treating physician for prescription of the pharmaceutical treatments used to treat opioid addiction, including buprenorphine, methadone and naltrexone.  However, it should be noted that hurdles will still exist despite declaring the opioid crisis a national emergency. For example, methadone may only be dispensed by an opioid treatment program certified by the Substance Abuse and Mental Health Services Administration.  Additionally, physicians must have a Drug Addiction Treatment Act of 2000 (DATA) waiver in place to prescribe buprenorphine, and are limited to prescribing to no more than 200 patients under their individual DATA waiver.

Notwithstanding the potential hurdles, telemedicine is likely to play a substantial role in combatting opioid addiction and provider shortages, and it is important to remember that telemedicine’s utility in addiction treatment is not limited to prescribing controlled substances.  Telemedicine will undoubtedly serve as a tool in providing access to necessary counseling and psychiatric treatment that are foundational to the treatment of opioid addiction and the prevention of relapse. Increasing access to health care and pharmaceutical treatment is only the first step to addressing the opioid crisis. However, with a coordinated national strategy, intelligent funding and a long-term commitment to treating not only the effects of opioid addiction, but to its cause, the use of telemedicine will serve as an extremely potent tool in the fight against the opioid epidemic.

© 2019 McDermott Will & Emery

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About this Author

Lisa Schmitz Mazur, Health Law Attorney, McDermott Will Law Firm
Partner

Lisa Schmitz Mazur is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office.  Lisa maintains a general health industry practice, focusing on the representation of hospitals and health systems and other health industry providers.

Lisa’s representation of hospitals and health systems includes providing guidance on not-for-profit corporate governance matters, tax-exemption issues, conflict of interest compliance and overall corporate compliance effectiveness.  In addition, Lisa regularly assists hospital and health system clients to...

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Marcus Ryan, Mc Dermott Law Firm, General Healthcare Attorney
Associate

Ryan B. Marcus maintains a general health care practice. He advises hospitals health systems, and health industry clients on a variety of regulatory and transactional matters, including mergers, acquisitions, affiliations, and joint ventures.

While in law school, Ryan was editor-in-chief for the Annals of Health Law and a student fellow at the Loyola University Chicago Institute for Consumer and Antitrust Studies. He served as a judicial extern for the Honorable Virginia M. Kendall in the United States District Court for the Northern District of Illinois, and completed an externship in the general counsel’s office of a Chicago-area hospital. Ryan is a recipient of the Loyola Leadership, Service, and Public Interest Recognition Award.

312-984-7591
Associate

Marshall E. Jackson, Jr. is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C. office.  Marshall focuses his practice on transactional and corporate matters affecting health care organizations,  including business organization, corporate governance, mergers and acquisitions, strategic affiliations and joint ventures.  Marshall also provides advice and counsel on a full range of federal and state fraud and abuse laws to hospital systems, medical practice groups and pharmacies.

Prior to...

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