White House promotes accessible telehealth for addiction treatment
On June 22, 2022, the White House Office of National Drug Control Policy (ONDCP) issued guidance urging Congress and federal agencies to make certain telehealth access measures permanent for people with disabilities. related to substance use (SUD). The guide, titled Telehealth and substance use disorder services in the age of Covid-19: review and recommendations (Guidance), made four recommendations aimed at increasing access, use and equity of telehealth among people with TUS. The ONDCP notes that ensuring access to adequate health care is particularly important for people living with SUD, as these people are less likely to receive treatment in traditional settings.
In the Guide, the ONDCP specifically examines the impact of telehealth on people living with SUD and finally concludes that “people living with SUD are part of a particularly vulnerable group of people who would probably benefit from accessibility to health care providers through telehealth”. As part of this review, the ONDCP is assessing data from various sources regarding the use of telehealth and accessibility issues that have been highlighted during the COVID-19 pandemic.
The COVID-19 Public Health Emergency (PHE) was declared on January 31, 2020 and has prompted many federal and state agencies to expand access and insurance coverage for telehealth services. The Centers for Medicare and Medicaid Services (CMS), which reimburses certain telehealth services delivered using an “interactive telecommunications system”. An interactive telecommunications system is defined in Medicare Part B coverage for telehealth services (42 CFR § 410.78) as multimedia communications equipment that includes, at a minimum, audio and video equipment that enables real-time two-way interactive communication between the patient and the distant patient. doctor or practitioner on site. Notably, beginning in March 2020 as part of the PHE, CMS temporarily expanded the types of telehealth services Medicare would pay for. For the first time, CMS covered “audio-only telehealth services for the diagnosis, assessment, or treatment of mental health disorders for established patients when the originating site was the patient’s home.” CMS also expanded the list of providers who could provide telehealth services to Medicare patients and charge for those services.
Shortly after the start of the pandemic, in order to expand access to health care, the US Department of Health and Human Services (HHS) announced that during PHE it would allow license waivers for physicians participating in federal health care programs (eg Medicare) so they could receive payment for telemedicine services in states where they did not hold a license. State governments and state professional licensing commissions quickly followed, with nearly all states changing licensure requirements and/or healthcare provider renewal policies, including licensing requirements. out-of-state telehealth.
The CMS was not the only body to waive requirements in order to improve access to healthcare services using telehealth during the PHE. The Drug Enforcement Agency (DEA) has notably waived the requirement under the Ryan Haight Online Pharmacy Consumer Protection Act that any practitioner (with limited exceptions) who has issued a prescription for controlled substances must first proceed with an in-person assessment. In addition, the DEA and the Substance Abuse and Mental Health Services Administration (SAMHSA) have also waived certain requirements related to prescribing controlled substances for SUD treatment (collectively, SUD Waivers). SUD waivers allow qualified practitioners to prescribe certain controlled substances, such as buprenorphine, to SUD patients via telehealth without first performing the required in-person assessments. These waivers significantly changed the way the federal government regulated drugs for drug treatment and removed many of the barriers faced by people with SUD seeking treatment. SOUTH waivers are currently due to end at the end of the PHE.
The Guide provides four recommendations to enable the continued expansion of telehealth services for people with SUD. These recommendations are directed to Congress, federal agencies, and medical providers:
(1) FFederal Support for Mutual Recognition and Reciprocitycity of licenses
The Guide first addresses the complexities that will be presented to healthcare providers practicing across state lines after the end of PHE. Although a state-to-state covenant can streamline the cumbersome licensing process for providers who wish to practice in multiple states, state-by-state enactment of covenants is inefficient. Each state must not only separately enact the compact, but must use the precise language of the compact. If the covenant is changed, the state must repeal and reactivate the covenant to maintain compliance. Rather than enacting medical covenants at the state level, the Guide recommends that the federal government take legislative and administrative steps to encourage reciprocity in licensure. While some states have made license flexibilities put in place during PHE permanent, other states have already revoked extended telehealth license authorizations from their respective emergency orders, regulations or statutes. In response, the federal government could encourage reciprocity of permanent licenses between states, for example, by mandating license reciprocity in the context of Medicare and other federal program beneficiaries, and by increasing license portability.
(2) Adopt and permanently expand PHE telehealth prescribing changes
Next, the guidelines recommend the continued promulgation and expansion of PHE telehealth regulations aimed at increasing access to telehealth services, including waiving the site of origin requirement. Deviating from the original site requirement has been key to expanding access to telehealth services. Prior to the PHE, the originating site requirement was a barrier to Medicare reimbursement for telehealth services, as Medicare only reimbursed services if the patient received service from a “qualified originating site”, such as a doctor’s office. This prevented Medicare patients from receiving telehealth services at home or outside of a traditional health care facility. The Guide notes that this waiver should be made permanent by an act of Congress. The Guide also specifically recommends that the DEA expand and make permanent the SUD waivers described above. Currently, the waivers apply to the prescription of buprenorphine for opioid use disorder, but the guidelines recommend making the waivers permanent and expanding them to cover all methadone prescriptions to increase the access to treatment for opioid use disorder.
(3) Increase funding for mobile apps and telehealth support services
The Guide also advocates increased funding for telehealth platforms. The guidance emphasizes that telehealth “cannot be the future of medicine” if services do not consider how people in vulnerable populations, those with SUD, those with limited financial means , people of color and those with developmental and physical challenges are using technology. . Thus, the Guide emphasizes the importance of equipping platforms with adaptive technologies, mobile applications and public Wi-Fi access to ensure equitable access to telehealth. To ensure equitable access, the Guide recommends that medical providers hire a telehealth coordinator who would work with these populations to foster digital literacy, training and education. The guidelines also highlight the importance of increasing high-speed Internet access in rural and remote areas and welcome the American Rescue Plan Act’s multi-billion dollar funding for the expansion of high-speed Internet access. across the United States.
(4) Consider the privacy and ethical implications of using telehealth
Finally, the Guidance urges the federal government to consider expanding platforms that can be used for telehealth services. During PHE, HHS waived some HIPAA requirements to encourage providers to treat patients via telehealth. HHS allowed providers to use certain non-public apps, such as FaceTime, Facebook Messenger, Google Hangouts, Zoom, and Skype for Telehealth Services, even if those programs were not fully HIPAA-compliant, as long as the provider l did in “good faith.” SUD players have argued for this waiver to become permanent, arguing that if patients have more choice on available platforms, patients are more likely to seek healthcare. Although the Guide warns that using these apps can lead to privacy issues, a “cost-benefit analysis of providing more people with access to health care providers… weighs heavily in favor of the collaborating with technology companies to comply with HIPAA”. In addition to patient privacy, the Guide also recommends that policy makers, legislators and healthcare providers consider patient consent, accessibility, data use and protection when they provide telehealth access and services to patients.
While the White House’s acknowledgment of the benefits of telehealth and support for making some waivers permanent is encouraging news for telehealth providers, the fact that the guidelines are specific to SUD treatment suggests that broader changes related to the Telehealth prescribing of controlled substances may not have the support of the White House and other policy makers. If PHE waivers are not made permanent, many of the gains that have been made recently in improving access to behavioral health and other services will be lost.
©1994-2022 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC All rights reserved.National Law Review, Volume XII, Number 192