Unwinding of COVID emergency brings hurdles for gender-affirming care

Catch up fast: The public health emergency (PHE) gave health providers the flexibility to prescribe certain drugs or chemicals considered to have a potential for abuse or becoming addictive without an in-person visit.

• Testosterone has been grouped with synthetic hormones on the list since 1990, due to concerns around its misuse and reports about athletes using testosterone or steroids to enhance their performance.
• It is the only hormone used in gender-affirming care that is considered a controlled substance.

State of play: The Drug Enforcement Agency and the Department of Health and Human Services last month announced a proposed rule to loosen some of the in-person prescription requirements once the health emergency ends, in May.

• Providers could make an initial 30-day prescription through telemedicine, but would then require an in-person visit.
• The agency is also proposing an option for patients to see a DEA-registered practitioner who could then make a referral to a provider who can continue treatments via telehealth.

Between the lines: That isn't enough for some lawmakers in Congress who are pressing the Biden administration to make the pandemic-era prescribing flexibilities permanent.

• The expiring policies "greatly benefitted" the trans community, according to a 2022 letter to the DEA and HHS from lawmakers obtained by Axios.

What they're saying: "[W]e cannot allow the critical tools that were developed to connect patients to care to sunset along with [the PHE]," Sen. Ed Markey (D-Mass.) said in a statement to Axios, adding that the Biden administration should "expand, not roll back, gender and life-affirming care for trans people."

• "While I appreciate the DEA's efforts to remove barriers to health care, we need to do more to ensure that accessing testosterone for transgender and gender non-conforming communities isn't burdensome, complicated, or delayed," said Rep. Sara Jacobs (D-Calif.), vice chair of the House Equality Caucus.
• Rep. Pramila Jayapal (D-Wash.), the other vice chair said "[m]aintaining and expanding access to gender-affirming care is more important than ever," citing how red states have increasingly moved to restrict health care for trans people.

The other side: Lawmakers in conservative-led states have considered or passed bans on gender-affirming care that address telemedicine.

• Tennessee's recently enacted ban on gender-affirming care for trans minors specifically says that medical procedures administered via telehealth are prohibited.
• In Florida, lawmakers are considering a bill that would prohibit gender-affirming care via telemedicine by requiring that providers be "physically present" to provide treatment to an adult.

Zoom in: Absent a carve out for testosterone, DEA could opt to lightly enforce the in-person prescribing requirement and make it harder for providers to run afoul of the rules, Jeremy Sherer, digital health co-chair at law firm Hooper, Lundy & Bookman, told Digital Health Business & Technology.

Health experts say the accommodations aren't enough to ensure that patients who have been accessing medication via telemedicine during the pandemic can do so after the emergency ends.

• "The continuity of care for countless Americans will be severed, potentially leaving these patients to fall through the cracks of our healthcare system without access to needed medications," said Kyle Zebley, the American Telemedicine Association's senior vice president of public policy.

• "[R]equiring every patient who has initiated treatment via telemedicine during the pandemic to now visit a provider in-person clearly falls on the side of being overly restrictive."

Research has shown that trans patients often struggle to access in-person gender-affirming care due to a "general lack of providers, as well as a specific lack of competent providers who were willing to provide care to [trans] patients."

• "Our concern is that 30 days will not be enough to allow our community and many others to actually find an in-person provider to go to," said Jerrica Kirkley, a physician specializing in family medicine and co-founder of Plume, a gender-affirming telehealth app.
• The National Center for Transgender Equality found that in 2015, trans people needed to travel over 50 miles to access in-person gender-affirming treatments — a number that has since likely increased as more states restrict health care for trans people.
• Most LGBTQ health clinics are located in major cities and often have months-long waiting periods, making it difficult for trans patients to secure in-person appointments with a provider.
• Additionally, while general physicians instead of specialists might be easier to access, many are not trained or willing to treat trans patients.
• Half of trans people have reported that when seeing general providers, they have had to "teach their medical providers about transgender care," per a survey from the National Gay and Lesbian Task Force.

What's next: The DEA is currently requesting comments on the rule and the public has until the end of March to submit feedback before the agency drafts final regulations.

Go deeper: What goes — and what doesn't — with the end of the public health emergency