The telehealth cliff: Congress must act now to ensure access to mental health, SUD Care  

As America emerges from the pandemic, it has become frightfully clear the extent to which the pandemic has exacerbated an already deepening mental health and substance use crisis. According to the Substance Abuse and Mental Health Services Administration (SAMHSA), approximately one in five adults, or 50 million people in the United States, suffered from a mental illness in 2020, and 40 million Americans suffered from substance use disorder.  

Unfortunately, the crisis continues to grow worse because many Americans lack access to mental and behavioral health services.  Over 150 million Americans live in mental health provider shortage areas. As a result, many people are simply not receiving care. 

In response, Congress and the federal government have embraced telehealth as a solution to this severe lack of access to treatment for mental health illness or substance use disorder. Telehealth removes barriers like distance, cost, and staffing shortages and allows providers to offer services to individuals who may not otherwise have access.     

One specific area where access was improved is the result of waivers granted by the Drug Enforcement Agency (DEA) during the pandemic. These waivers allow qualified clinicians to prescribe some controlled drugs used specifically to treat substance use disorder after performing a telehealth examination.  This waiver has been in place for more than two years, and research has shown that it has provided significant benefits to patients.  A study published in the Journal of the American Medical Association concluded that “use of telehealth during the pandemic was associated with improved retention in care and reduced odds of medically treated overdose …”

Unfortunately, the future of telehealth remains uncertain. If Congress does not act by the end of the year, these important telehealth flexibilities will expire when the Public Health Emergency ends, leaving thousands of patients without access to mental health and substance use disorder treatments. There are two ways Congress can avoid this “telehealth cliff” in time. 

Congress could pass legislation like the bill I introduced, the bipartisan “Telehealth Response for E-prescribing Addiction Therapy Services Act (also known as the TREATS Act, H.R. 1647)” that would preserve DEA telehealth prescribing waivers.   

Alternatively, Congress could extend the DEA’s telehealth prescribing waiver for at least one year after the Public Health Emergency ends.  Two current laws direct the DEA to establish a Special Registration for providers to prescribe controlled substances through telehealth — (1) the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 (Ryan Haight Act) and (2) the SUPPORT for Patients and Communities Act of 2018 (SUPPORT Act).   

Finally, after a long delay, the DEA submitted a proposed rulemaking to the Office of Management and Budget (OMB) in March 2022 where it remains today. With the Public Health Emergency expected to end in 2023, Congress could temporarily preserve DEA’s current telehealth waivers through a one-year extension, allowing the rulemaking process to be completed.    

There is broad support across the medical community for maintaining access to controlled substance prescribing through telehealth. In November 2022, the American Medical Association, American Psychiatric Association, and more than 100 other health care organizations called on the DEA and DOJ to make this waiver permanent, and over 370 health care organizations asked Congress in September to extend the waivers after the Public Health Emergency. 

Congress should act now to preserve providers’ ability to prescribe controlled substances through telehealth to ensure that patients do not lose access to critical mental and behavioral health treatments when the pandemic ends.   

David B. McKinley, P.E. has proudly represented West Virginia’s 1^st District since 2011. He currently serves as ranking member of the Environment Subcommittee on the House Energy & Commerce Committee. McKinley has fought to preserve health, safety, and access to care for his constituents of West Virginia and all Americans during the opioid crisis.