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White House issues recommendations on telehealth and SUD services – Part II

On June 22, 2022, via the Legislative Analysis and Public Policy Association, the White House Office of National Drug Control Policy (ONDCP) released its “Telehealth and Substance Use Disorder Services in the Era of COVID-19: Review and Recommendations” (Guidance). While this publication does not have the force of law, it is clear direction to legislators and agencies on advancements in telehealth for SUD patients.

In addition to providing helpful background information on telehealth, telehealth modalities and use in services for individuals with SUD, current law and policies relating to health, and a discussion on the benefits and limitations of telehealth for individuals with SUD, the Guidance presents four recommendations for the future of telehealth. Summaries of these four recommendations are below:

  1. Federal Support of Mutual Recognition and Reciprocity of State Licenses

This recommendation suggests that – in place of interstate medical compacts that each state legislature must enact separately to be effective – the federal government considers legislative and administrative proposals to encourage reciprocity among state licensing systems.

  1. Permanently Enact and Expand PHE Telehealth Regulatory Changes

This recommendation suggests that the waiver of certain requirements, such as the originating site requirements for Medicare reimbursement of telehealth services, become permanent. The DEA should also consider making permanent the SUD treatment and recovery changes implemented as a result of the PHE, including authorizing qualified practitioners to prescribe controlled substances to patients using telehealth without first conducting in-person evaluations (as has been the case during the PHE).

  1. Increase Funding for Mobile App and Assistive Telehealth Services

“Telehealth services cannot, and will not, be the future of medicine if vulnerable populations, individuals with limited financial means, individuals with SUD, individuals of color, and individuals with developmental and physical challenges are not able nor incentivized to use it.”

This recommendation suggests that to help individuals who have difficulty with connectivity and Internet access, private companies and government organizations should consider funding projects that provide access to the Internet. This is in addition to the federal legislation already passed (American Rescue Plan Act), which included a multi-billion dollar appropriation to help expand high-speed Internet access.

  1. Consider the Privacy and Ethical Implications of Telehealth Use

During the PHE, many platforms that are not fully HIPAA-compliant have been permitted to be used for the delivery of telehealth services. While the risk of a data breach in non-HIPAA compliant platforms is significant, this recommendation suggests that “the cost-benefit analysis of providing more people with access to health care providers on platforms that they already use on a regular basis weighs heavily in favor of working with tech companies to gain HIPAA compliance.” Ethical considerations remain, including consent, accessibility, data use, and protection that policymakers, legislators, and health care providers must weigh to provide telehealth access and services ethically and honestly to patients.

As mentioned above, the Guidance also provides helpful background information. Below are some of the highlights:

Background on the Pandemic’s Impact on Individuals Living with SUD

As of July 2021, more than 600,000 people in the United States have died due to or resulting from, COVID-19.

  • The emotional, mental, and physical toll that the COVID-19 pandemic has had on Americans (due to illness and death, disruption of global supply chains, a record 3.28 million Americans filing for unemployment compensation for the week ending March 21, 2020—and subsequent high numbers of unemployment—, and the dramatic increase of the number of households struggling to put enough food on the table, etc.) has been profound.
  • Individuals living with SUD have been particularly vulnerable during the pandemic, as in addition to navigating the complex and ever-changing landscape of a society in the throes of a pandemic, many individuals with SUD were suddenly unable to access services that can be crucial to their treatment or recovery.
  • The sudden onslaught of shelter-in-place and social distancing requirements meant the discontinuation of Narcotics Anonymous and Alcoholics Anonymous, often the primary treatment option for individuals with SUD.
  • The data indicates that the abrupt loss of treatment and recovery resources had a real and negative impact on those with SUD, including higher usage of fentanyl, methamphetamine, and cocaine, and the highest number of drug overdose deaths ever recorded in a 12-month period (from November 2019 to January 2021).

Background on Telehealth and Telehealth Modalities

  • Telehealth generally involves some form of health or medical care through electronic means and can include care through telephonic video, remote monitoring, video communication, remote consultation, apps, and Web-based platforms. Each state, the District of Columbia, and the U.S. Virgin Islands all have their own statutory or regulatory definition of telehealth. The terms used can include (but are not limited to): telecare, e-health, telemedicine, telecommunications, direct-to-consumer telehealth platforms, and digital health.
  • “Practitioner-to-practitioner” telehealth is when a health care practitioner communicates with another practitioner through email or video. This also includes peer mentoring.
  • “Practitioner-to-patient” telehealth is when a clinician interacts with a patient, whether through video, phone, email, remote wireless monitoring, or the Internet. This type of telehealth service can be used when a clinician is caring for chronic conditions, counseling a patient, providing mental health services, or engaging in post-discharge follow-up.
  • “Patient-to-mobile health” telehealth (or mobile health/mHealth) is the monitoring and sharing of health information via mobile technology, such as wearables and health-tracking apps.
  • All telehealth services can generally be categorized into four modalities:
    • (1) Synchronous: any telehealth service that involves the delivery of health information in real-time. This can include live discussions between a patient and a provider.
    • (2) Asynchronous: does not involve a provider or practitioner in person. This can include “store and forward” telehealth services, where a “patient or physician collects medical history, images, and pathology reports (stored information) and then sends it to a specialist physician for diagnostic and treatment expertise.”
    • (3) Remote monitoring: uses direct video monitoring of the patient to review tests and images collected remotely.
    • (4) Mobile health app: this can include emerging technologies such as mobile applications and text apps for telehealth services that are not traditionally categorized under telehealth services but potentially offer an opportunity to increase access to vital services for individuals living with SUD.
  • Within the realm of SUD treatment and recovery, the four most common modes of providing telehealth services are:
    • (1) Computerized/Web-based assessments (asynchronous): 45% of SUD-related telehealth services are provided by this mode. Some examples of this time of assessment include Alcohol Use Disorders Identification Test, motivational therapy sessions, psychoeducation, and computerized interventions.
    • (2) Telephone-based recovery support (synchronous): 29% of SUD-related telehealth services are provided by this mode.
    • (3) Telephone-based therapy (synchronous): 28% of SUD-related telehealth services are provided by this mode.
    • (4) Video-based therapy (synchronous): 20% of SUD-related telehealth services are provided by this mode.

*Please note the percentages listed here exceed 100%, but this Bulletin faithfully summarizes the numbers as indicated in the Guidance.

Background on Current Law and Policies Relating to Telehealth Services

Federal Laws and Policies

  • With the initial PHE declaration on January 31, 2020, federal agencies were permitted to make sweeping changes to laws and regulations, including changes to laws that explicitly impacted telehealth services, such as:
    • Modifying regulations and other laws that govern telehealth, including provisions of the Ryan Haight Online Pharmacy Consumer Protection Act (Ryan Haight Act) and implementing regulations that allow the Secretary, with the concurrence of the Administrator of the Drug Enforcement Administration (DEA), to designate patients, patient locations, and the use of controlled substances during a PHE declared by the Secretary;
    • The ability to grant extensions or waive sanctions relating to the submission of data or reports required under laws administered by the Secretary; and
    • Waiving or modifying certain requirements under Medicare, Medicaid, the Children’s Health Insurance Program, and the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule
  • On March 17, 2020, CMS announced it would be expanding access to Medicare telehealth services, including broadening the types of services for which Medicare would pay if performed via telehealth. Under the PHE, CMS covered audio-only telehealth services for diagnosis, evaluation, or treatment of mental health disorders for established patients when the originating site was the patient’s home. Also, under the PHE, payment is available for all health care professionals who are eligible to bill Medicare for professional services (and the list of providers that could provide telehealth services to Medicare patients was expanded).
  • Congress appropriated $200 million in funding to the COVID-19 Telehealth Program as part of the CARES Act. Congress also increased funding to the Telehealth Network Grant Program (overseen by HRSA), which is tasked with expanding access to and improving the quality of health care services by funding and promoting rural tele-emergency services.
  • In 2018, it was estimated that two million Americans were living with an opioid use disorder (OUD), among whom only 26% received any form of treatment in 2018. The COVID-19 pandemic has only exacerbated this treatment gap.
  • Against the backdrop of the treatment gap, MAT drugs being considered controlled substances, and the Ryan Haight Online Act (which requires an in-person examination before the issuance of a prescription for controlled substances, with few limited exceptions), both the DEA and SAMHSA significantly revised these regulations. The DEA made the following changes:
    • Authorizing qualified practitioners to prescribe controlled substances to patients using telehealth without first conducting in-person evaluations during the duration of the PHE;
    • Partnering with SAMHSA to allow qualified practitioners to admit and treat patients with OUD during the duration of the PHE; and
    • Authorizing qualified practitioners to prescribe buprenorphine to new and existing patients with OUD via telephone or through other telehealth means without requiring that the practitioners first meet face-to-face to conduct examinations with patients.

SAMHSA implemented the following changes:

  • Exempting OTPs from performing in-person physical evaluations for any patients whom the OTP will treat with buprenorphine;
  • Allowing DATA-waived practitioners to prescribe buprenorphine for maintenance or detoxification treatment via telephone; and
  • Allowing for qualified practitioners to treat existing OTP patients with methadone via telehealth (although SAMHSA still requires that all new OTP patients being treated with methadone be seen for in-person medical evaluations).
  • Most of these changes are temporary and, by law, are currently slated to end at the conclusion of the PHE.

State Laws and Regulations

  • Most state legislators and policymakers passed provisions guaranteeing that private insurance companies licensed within a state covered the cost of telehealth services. Prior to the pandemic, only 35 states required individual and group health insurance to cover the costs of telehealth visits.
  • For the first time, Utah, Illinois, West Virginia, Massachusetts, and Vermont enacted laws or suspended legal restrictions on coverage of telehealth services.
  • Arizona, Illinois, Maine, Massachusetts, Montana, New Hampshire, Rhode Island, Texas, and Washington enacted parity-in-provider reimbursement. These require private insurers to pay for telehealth visits at the same level that in-person visits are covered.
  • In addition, Oklahoma, Washington, Oregon, California, Montana, Colorado, Arizona, North Dakota, Nebraska, Minnesota, Iowa, Texas, Louisiana, Mississippi, Maine, New Hampshire, Massachusetts, Vermont, Rhode Island, New Jersey, and New York expanded coverage to include telehealth services provided over the phone. Subsequently, lawmakers in New York, Nebraska, and Oklahoma permanently enacted laws that require insurance to include audio-only telehealth services or provided over the phone.
  • Several states also enacted regulations that allow federally qualified health centers (FQHCs) and/or rural health clinics (RHCs) to provide services via telehealth, which could significantly expand the reach of telehealth under Medicaid. Prior to this, FQHCs and RHCS were excluded from telehealth coverage because these centers bill as entities instead of providers, and they are often excluded from the telehealth-eligible provider list for this reason. Similarly, Medicare has also excluded FQHCs billing as telehealth providers

Background on the Benefits and Limitations of Telehealth for Individuals with SUD

  • Benefits for patients include increased access to health care and potential monetary savings.
  • Benefits for providers can include decreasing the risk of exposure to illness, and the opportunity to grow their practices by using telehealth services to reach new patients across state lines.
  • Limiting person to person contact is both a benefit and limitation in providing care.
  • Although telehealth services can be utilized by individuals in vulnerable populations, this does not mean that they are. Vulnerable populations, such as communities of color and individuals living in rural areas, are not accessing telehealth services at a particularly increased rate. Data collected before the COVID-19 pandemic indicated that the most rapid growth in telehealth use has been among younger, more educated, urban adults.
  • Although behavioral health services are especially suited to telehealth, newly released data indicates that Americans did not utilize telehealth services for behavioral health. The increased use of telehealth services has not had a huge impact on mental health services, which is often a crucial component of care for individuals living with SUD. This is despite the fact that the number of people reporting mental health issues grew from 11 percent in 2020 to 34 percent in 2021.
  • This issue is particularly concerning for those with SUD. In a comprehensive study of data from over 15,000 outpatient behavioral treatment facilities from SAMHSA’s treatment services locator, researchers found that between January 2020 and January 2021, although the availability of telehealth services increased significantly at these facilities, actual use remained low. Thirty-two percent of mental health facilities and 43 percent of SUD treatment facilities did not offer telehealth as of January 2021, nearly 1 year into the pandemic.
  • The increased use of telehealth services has the potential to help patients save on health care costs. On average, telehealth services cost less than in-person health care visits. The national median cost of a virtual telehealth visit for a minor health issue is $50.00. In contrast, the average cost of a visit to the doctor’s office for a similar health issue is $85.00. For a visit to urgent care for that same minor issue, the average cost is $130.00, and further, a visit to the emergency room costs $740.00. However, although there are indicators that telehealth services can save consumers money, it remains unclear whether such cost-savings will be significant in the long term.
  • Although many waivers were put in place both at the federal and state level during the pandemic to allow out-of-state practitioners to provide telehealth services, unfortunately, licensing requirements may once again be an obstacle to providing telehealth services once the federal government declares the end of the PHE.
  • There are currently six different interstate compact organizations overseeing out-of-state licensing for various medical professionals, including:
    • The Interstate Medical Licensure Compact (IMLC), for medical and osteopathic doctors
    • The Nurses Licensure Compact
    • The Psychology Interjurisdictional Compact (PSYPACT), for psychologists only
    • The Physical Therapy Compact
    • The Audiology & Speech-Language Pathology Interstate Compact; and
    • The Emergency Medical Services Professional Licensure Interstate Compact

Conclusion

The Guidance concludes by emphasizing that individuals living with SUD are part of a particularly vulnerable group of people who would likely benefit from increased access to health care providers through telehealth. If some of these issues can be addressed and overcome, the future of health care in America can include telehealth services based on evidence-based, informed practices that are designed to be accessible to everyone.

You can find the publication in full here: https://www.whitehouse.gov/wp-content/uploads/2022/06/Telehealth-and-Substance-Use-Disorder-Services-in-the-Era-of-COVID-19-FINAL.pdf. You can find the White House press release here: https://www.whitehouse.gov/ondcp/briefing-room/2022/06/22/ondcp-announces-report-on-improving-telehealth-services-for-substance-use-disorder/.

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Related Services:

Behavioral Health Care | Telehealth

About the Authors:

Erica Erman is an associate in Dickinson Wright’s Phoenix office. She can be reached at 602-889-5342 or eerman@dickinsonwright.com. Her biography can be accessed here.

Gregory Moore is a Member in Dickinson Wright’s Troy office. He can be reached at 248-433-7268 or gmoore@dickinsonwright.com. His biography can be accessed here.

Emma Trivax is an associate in Dickinson Wright’s Troy office. She can be reached at 248-631-2098 or etrivax@dickinsonwright.com. Her biography can be accessed here.