Dialing In or Dialing Out? The Relationship Between State Telemedicine Law and Access to Buprenorphine

This Article begins by reporting the results of a comprehensive 50-state survey assessing state laws and other state sources governing the telemedicine induction (“tele-induction”) and subsequent telemedicine prescription (“tele-prescription”) of buprenorphine for the treatment of opioid use disorder (“OUD”) following the expiration of the COVID-19 public health emergency (“PHE”). Original, concrete findings include: (1) the glaring patchwork of state law governing the tele-induction and subsequent tele-prescription of buprenorphine for the treatment of OUD in the United States; (2) the variety of primary authorities and secondary sources that house relevant permissions, prohibitions, and affiliated requirements; (3) the number of primary authorities and secondary authorities that were enacted or issued during or after the COVID-19 PHE, suggesting specific state intent to copy—or to counter—pandemic-era federal flexibilities; (4) the number of states that have implied, rather than express, permissions for the tele-induction and/or tele-prescription of buprenorphine; (5) the difficulty I, a veteran multi-state researcher, experienced in finding relevant sources; (6) the constant change in some sources, especially during and since the expiration of the PHE; (7) state indication of future change pending the direction of a final federal rule, which has since been issued; (8) the general lack of clarity in state law, which impedes both provider and patient knowledge of local rules and patient access and continuity of care; (9) the fact that some virtual providers of buprenorphine appear to be operating in violation of state law; (10) the inconsistent association between and among state political mapping, state regulation in other areas of health law, and buprenorphine regulation; and (11) the fact that up to eleven state laws are more restrictive, in whole or in part, than the federal government’s current telemedicine flexibilities, which means that not all prescribers and patients in these states will benefit from federal flexibilities. This Article continues by arguing for additional federal and state reform in the area of buprenorphine tele-induction and tele-prescription. On January 17, 2025, the Drug Enforcement Administration (“DEA”) and the Substance Abuse and Mental Health Services Administration (“SAMHSA”) released a final rule that will, unless changed by the new administration, limit buprenorphine tele-induction and subsequent tele-prescription to a six-month period. Then, an in-person medical evaluation (or satisfaction of another exception to the in-person evaluation requirement) must take place before additional prescribing occurs. This Article carefully disputes the safety, efficacy, and diversion concerns relied upon by the DEA and SAMHSA in the final rule, as well as similar concerns relied on by state lawmakers in restrictive state legislation. A conclusion contends that federal and state laws should permit the tele-induction and subsequent tele-prescription of buprenorphine for the treatment of OUD without limitation, consistent with federal flexibilities that applied during the COVID-19 PHE and that continue to apply through December 31, 2025.