Ketamine Telehealth and the Looming Public Health Emergency Deadline

In early 2020, the United States Department of Health and Human Services (DHHS) declared a public health emergency (PHE) due to the COVID-19 pandemic. DHHS extended the PHE numerous times over the last few years, most recently on July 15, 2022 for a period of 90 days. The PHE will expire on October 13, 2022 unless DHHS decides to renew it again. The PHE essentially paved the way for the ketamine telehealth industry. Today, let’s look at what we reasonably think will happen in the coming month.

I wrote a post back in April 2022 around the time that DHHS then extended the PHE. That post explains in detail why the PHE gave the ketamine telehealth industry a boost. I won’t repeat it all now, but the key point is as follows. The Ryan Haight Online Pharmacy Consumer Protection Act of 2008 (“Ryan Haight Act”) requires physicians, before prescribing controlled substances through telehealth, to have at least one prior in-person medical evaluation with a patient. The PHE essentially suspends this requirement.

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If the government does not amend the Ryan Haight Act and the PHE ends, the prior in-person evaluation requirement will come back for any newly established patient relationship. It is less clear what will happen for relationships established via telehealth during the PHE. State law may dictate this outcome. The federal government may also provide some kinds of carveouts or guidance that allows telehealth companies to continue serving these patients.

As I wrote in my prior post, groups are petitioning the federal government to change the Ryan Haight Act’s requirements for a prior in-person evaluation. But, the federal government is anything but fast. We can be pretty sure that nothing will change drastically within the next few weeks.

With that in mind, there are only a few weeks until the PHE expires. As I mentioned before, DHHS promised to provide 60 days’ notice before terminating the PHE declaration. Even though President Joe Biden recently declared the COVID-19 pandemic over, the healthcare industry is pushing to extend the PHE, so we expect DHHS will extend it again.

In sum, all signs point to the can being kicked down the road once again. Not a whole lot has changed since I last wrote on the topic, except that more and more groups want change. Hopefully the extra few expected months of PHE will allow DHHS or Congress to act. Stay tuned for additional updates on ketamine telehealth, the Ryan Haight Act, and the PHE.