[I’m writing this quickly to deal with an evolving situation and I’m not sure I fully understand the intricacies of this law - please forgive any inaccuracies. I’ll edit them out as I learn about them.]

Telemedicine is when you see a doctor (or nurse, PA, etc) over a video call. Medical regulators hate new things, so for its first decade they ensured telemedicine was hard and inconvenient.

Then came COVID-19. Suddenly important politicians were paying attention to questions about whether people could get medical care without leaving their homes. They yelled at the regulators, and the regulators grudgingly agreed to temporarily make telemedicine easy and convenient.

They say “nothing is as permanent as a temporary government program”, but this only applies to government programs that make your life worse. Government programs that make your life better are ephemeral and can disappear at any moment. So a few months ago, the medical regulators woke up, realized the pandemic was over, and started plotting ways to make telemedicine hard and inconvenient again.

The first fruit of their labor is DEA-407, which makes it hard for telemedicine doctors to prescribe controlled substances. Controlled substances are drugs like Adderall, Ritalin, Xanax, or Ambien that the government has declared to be potentially addictive. The new rules say that telemedicine doctors can no longer prescribe these (or, in some cases, can prescribe them one time in an emergency).

Why don’t I like this decision? I am a telepsychiatrist. I work with about a hundred psychiatric patients who, for one reason or another, prefer online to physical appointments:

  • Some live in small towns that don’t have psychiatrists of their own

  • Some have agoraphobia, chronic pain, or some other condition that makes it hard for them to go to an office.

  • Some move around a lot and like to be able to see their psychiatrist whether they’re in LA or SF.

  • Some live hundreds of miles away from me, but know and trust me for some reason, and would rather see me than someone closer to them.

  • Some appreciate the fact that I charge lower rates than psychiatrists who have offices, because I don’t have to pay for Bay Area commercial real estate and pass those costs on to my patients.

  • Some work during work hours, and like being able to see me from their office instead of taking half the day off to travel to my location.

  • Some like convenience and dislike inconvenience

As a psychiatrist, a big part of my job is prescribing controlled substances. For example, most guidelines agrees that the first-line treatment for severe ADHD is stimulant medications (eg Adderall or Ritalin). And although psychiatrists hate to admit it, the first-line treatment for temporary crisis anxiety, especially when it’s so bad that the patient isn’t able to listen to your clever plans to solve it with therapy, is benzodiazepines (eg Valium or Klonopin). You can’t be a good well-rounded psychiatrist without the option to sometimes prescribe these drugs.

“Well, your patients will have to find a different psychiatrist, or transition off of them”. Nobody ever finds different psychiatrists. Some of my patients are a bad match for my style or areas of expertise, and I’ve tried very hard to find them different psychiatrists, and it never works. Maybe there are no other psychiatrists in their area. Maybe the psychiatrists in their area don’t take the right insurance, or are too far away from mass transit. Maybe the psychiatrists have six month long wait lists. Sometimes it’s just that my ADHD patients get distracted and forget they were supposed to find new psychiatrists, and I can’t hold their hand literally all the time. As for transitioning off the medications, some patients absolutely cannot function at all without them. Did I mention that if you come off of some of them too quickly, you can literally die?

The medical regulators grudgingly acknowledge these issues and have placed two loopholes in the law:

  • If you ever see a doctor in person, even once, they can prescribe you controlled substances from then on, even if they only see you by telemedicine afterwards.

  • If you see another doctor in person, and that person writes your doctor a letter saying they agree with your doctor prescribing controlled substances, then your doctor can prescribe controlled substances.

These loopholes are helpful. They mean I can continue my psychiatry clinic. But they sort of lampshade how stupid all of this is, don’t they?

I’m probably going to rent an office somewhere in Oakland for the month for a few thousand dollars. I’ll demand my patients come see me in person, once, so I can keep prescribing them the medication I’ve been successfully prescribing them for years. My patients will spend hours driving in from Sacramento or Napa or wherever it is they live. I’ll see them, say “Yup, you look the same in person as you do over Zoom, good job”, and then refill their prescription, same as always. Except I’ll have to charge them a bit more, to recoup the cost of the office.

The ones who are hours and hours away, or who don’t have cars, will have to find some other doctor. They’ll spend hours on the phone with their insurance, with the office, etc, scheduling an appointment. They’ll pay some hefty co-pay. The conversation will go like this:

Patient: Please sign this form so I can continue seeing my psychiatrist, who I like and who is treating me successfully. It just says you’ve evaluated me and think I’m a good candidate for a psych referral.

Doctor: I don’t know anything about psychiatry.

Patient: Right, you’re not supposed to, that’s why you’re referring me to a psychiatrist.

Doctor: I don’t even know which psychiatrists are good to refer people to.

Patient: I suggest the one I’m already seeing, who was doing a great job until the government demanded I get your signature to keep seeing them.

Doctor: Okay, fine, that will be $200 please.

And that’s the best case scenario! The worst-case is that you get one of those doctors who think that Psych Drugs Aren’t Real Because You Just Need Jesus, and then the patient has to keep looking until they find someone else.

Meanwhile, if there are actual evil telemedicine doctors prescribing meth to impressionable young children, they’re doing the same thing. “Sorry impressionable young child, the law says I can’t keep prescribing you meth until you see me in person once. I’m renting an office temporarily, please come visit one time and pay extra so I can keep dealing meth to you.” That doctor has no problems! Meth addicts’ willingness to drive a few hours and pay a little extra is noticeably higher than real psychiatric patients’!

If there are corporate pill mills that overprescribe via telepsychiatry, it will be the easiest thing in the world for these corporations to hire one doctor to see all their patients in person one time. “One referral to the pill mill, that will be $200 please”. Certainly it will be easier for these corporations than it will be for me, operating my single-person psychiatry clinic on small margins.

The problem here is that the DEA is trying to catch evil overprescribers by filtering for whether a doctor can see a patient one time in person, which is uncorrelated with whether they’re an evil overprescriber or not. It’s just an extra hurdle that’s inconvenient for everyone. Evil overprescribers will clear the hurdle so they can keep making money, and good doctors will work overtime, pay a couple of thousand dollars extra, and clear the hurdle so they can keep supporting their patients.

The longer-term effect will be to make telemedicine harder in general. In order to see a telemedicine doctor for a condition like ADHD or crisis-level anxiety, you’ll first have to find a doctor in your area, make it through their waiting list, and go physically to their office. But this was exactly the famously-inconvenient process that telemedicine was designed to prevent. Now it doesn’t. It’s like allowing cell phones, but you’re only allowed to use them in your house. Or allowing signs in Braille, but you can’t use them unless you fill out a written request form.

If you want to see a telemedicine doctor for a condition that doesn’t require controlled substances, you’re okay for now. But most patients don’t know which conditions will or won’t require controlled substances ahead of time. And in a crisis, your doctor might - instead of solving the crisis - tell you “this requires a medication I can’t give you yet, please make an appointment with a doctor in your area and then get back to me.” I think this will be an unpleasant surprise for most patients in crisis. As people start to expect it, they’ll become warier of telemedicine.

See also commentary from The Hill (“the DEA’s new telehealth rules are medical malpractice”), Fierce Healthcare (the ATA calls it a “potential public health crisis”), Senator Mark Warner (“Given the dramatic shortage of mental health providers nationwide, expanded access to prescribers through telehealth is key”), Fast Company (“This could actually be catastrophic”), health care law firm Foley & Lardner (“The initial reaction is the rules are more restrictive than necessary and impose concerning limitations and burdens on clinicians and the patients they treat”), and LGBT site Them.us (“the rule could have a devastating impact on trans people”).

If you want, you can submit a comment to the DEA here (use the green box on the top right, act before March 31). I don’t think it will particularly help. There are already 20,702 comments. I haven’t read all of them, but I’ve read a few dozen; as far as I can tell, they are all negative. Each one is a unique story of woe, someone explaining why their particular edge case means this rule would be devastating for them. I have no faith that the DEA will care. Commenting seems almost pathetically innocent, like writing a letter to Vladimir Putin saying “please stop invading Ukraine” and hoping he will listen. Still, you can do it if you want.