Uncertain Telehealth Laws Keep Substance Abuse Care Providers on Their Toes

June 28, 2021 - Telehealth adoption has surged during the coronavirus pandemic, particularly in treatments for people dealing with substance abuse issues. And that trend will likely continue, as providers look for more and better ways to manage care for a fast-growing population.

Much of that growth in connected health services was driven by state and federal waivers issued over the past year and a half to boost telehealth access and coverage to address COVID-19. But with the pandemic winding down, several states are ending their public health emergencies, leaving providers scrambling to figure out what they can and can’t do any more.

“These patients just can’t be abandoned,” says Nate Lacktman, a partner with the Foley & Lardner law firm and chair of the firm’s Telemedicine & Digital Health Industry Team, who considers telehealth for substance abuse treatment one of the top issues coming out of the pandemic. To wit: Providers who might have been using telehealth platforms to treat patients might suddenly find themselves unable to do so if there state reverts to pre-COVID-19 telehealth rules.

The issues are numerous, and confusing. Many healthcare providers dealing in substance abuse treatment – including mental and behavioral healthcare providers – were restricted in how they used telehealth prior to the pandemic. With the onset of COVID-19, state and federal lawmakers loosened those rules, allowing more care providers to use telehealth and giving them leeway to prescribe controlled substances via telehealth and even connect with patients by phone.

Some states have revised their telehealth rules to allow more coverage and access after COVID-19, while others are waiting on the federal government to set a long-term policy.

READ MORE: Federal Grant to Help Mississippi Use Telehealth to Tackle Opioid Abuse

On a federal level, providers are limited by the Ryan Haight Online Pharmacy Consumer Protection Act of 2008, which restricts the prescribing of controlled substances by telehealth. Telehealth advocates have long lobbied the federal government to create a registration process for providers wishing to use telehealth, and while the federal government has loosened a few of the rules during the pandemic, those freedoms end with the end of the public health emergency.

The federal government and the DEA are under increasing pressure to create that registration process for telehealth, which has been long promised but inexplicably ignored. Just last month, Virginia Senator Mark Warner sent a letter to Attorney General Merrick Garland and Drug Enforcement Administration Acting Administrator Chris Evans asking for that registration.

“The COVID-19 pandemic has made clear the importance of increased access to telehealth services and providers across the country continue to be frustrated there is no long-term solution for them to provide adequate care to their patients,” Warner wrote. “The DEA’s failure to promulgate the rule has meant that – despite Congress’ best efforts – millions of patients could be left without access to long-term treatment via telehealth.”

“In practice, the DEA’s failure to address this issue means that a vast majority of health care providers that use telehealth to prescribe controlled substances to and otherwise treat their patients have been deterred in getting them the quality care they need,” he added. “These restrictions have been temporarily waived during the COVID-19 public health emergency, and I welcome that, but patients and providers need a more permanent and long-term solution to this long-delayed rulemaking.”

Telehealth advocates are also watching the Health and Human Services Department following its announcement in January that it would eliminate the so-called X-waiver requirement for providers registered with the DEA. That would give providers more freedom to prescribe buprenorphine for certain patients dealing with substance abuse.

READ MORE: OIG Audit Analyzes Telehealth Use in Substance Abuse Treatment

They’re also watching two bills before Congress that would loosen the rules on telehealth coverage for mental health and substance abuse treatment. The Telehealth Response for E-prescribing Addiction Therapy Services (TREATS) Act, introduced in both the House and Senate after failing to pass in 2020, would eliminate the in-person exam requirement and allow care providers to prescribe certain controlled substances via telehealth in Medicated Assistant Treatment (MAT) therapy programs, as well as expand Medicare coverage for mHealth services to include audio-only phone calls. And the Comprehensive Addiction and Recovery Act (CARA) 2.0 bill, unveiled in December of 2020, would allow providers to use telehealth to prescribe medications in MAT therapy without an in-person exam.

Those bills are part of more than 40 telehealth-related pieces of legislation now before Congress, as tracked by the Alliance for Connected Care. In that light, and with Congress facing bipartisan battles on almost every vote, it’s difficult to predict what will succeed.

One Provider’s Strategy for Telehealth

For Linda Hurley, CEO and president of CODAC Behavioral Healthcare, MAT therapy is an integral part of substance abuse treatment. The Rhode Island-based organization has been combining mental health and substance abuse treatment since its founding in 1971, and was officially recognized by the Centers for Medicare & Medicaid Services as a CMS health Home in 2013 and a Center of Excellence for opioid treatment in 2016.

Connected health “is so much a part of the general conversation,” Hurley told mHealthIntelligence during a 2019 interview. “It increases the efficiency of the referral process and allows us to expand treatment throughout the state, giving us opportunities to treat patients where they are most comfortable.”

Hurley says it’s important to personalize care management for people who often have complex case histories, and who react differently to treatment. In-person treatment will always be the first choice, she says, but telehealth and mHealth give providers more opportunities to interact with patients and give them the help they need when they need it.

READ MORE: Boston Medical Center Launches mHealth App for MAT Providers

“This is one way, and this will be our primary way, but this is another way that we can engage,” she says. “And whatever works has to be the normal routine for the patient.”

mHealthIntelligence reconnected with Hurley a few months back to talk about telehealth and MAT therapy during and after COVID-19.

Q. How is telehealth/mHealth incorporated into MAT therapy now? 

Hurley: Nationally, and certainly in Rhode Island, most of all medication assisted programs - in particular methadone programs overseen by the Drug Enforcement Administration - went to hybrid models. This means we can (and do) provide counseling services, medication management and case management via telehealth. The only services that need to be in-person at this time, per regulation, are the induction services - particularly for methadone. So, our doctors and nurses and other providers have needed to be in-person at the clinic at some of the highest risk times in order to meet the increased demand for our services during this dual epidemic.   

Some states have lifted the requirement for an in-person visit to begin therapy with buprenorphine, including a pilot program in Rhode Island which involves access to a doctor by telephone - however there is a question as to whether that will be continued after the pandemic.   

Q. What are the advantages of using telehealth in MAT therapy? 

Hurley: Right now, CODAC has a study underway with the Brown University School of Public Health to evaluate the efficacy and patient satisfaction of telehealth in the provision of MAT. What we see overall, as we gather the data, is that the patients are very positive about access issues - for instance, with regard to transportation and childcare. Also, when relationships are developed with counselors, many patients are happy to meet via telephone or via video call with their ongoing provider. And we are also finding that many people who begin counseling - as part of the overall MAT - are quite satisfied with conducting that via telehealth. In some cases it can provide a greater level of comfort and intimacy - and they may miss fewer counseling sessions because of weather, childcare issues, transportation, etc. This means they may have access to more counseling.    

Q. How has the COVID-19 pandemic affected this strategy? 

Hurley: There has been a dramatic increase in the use of telemedicine in order to mitigate the risk of exposure to COVID-19 for our patients, staff and communities.     

Q. What has the federal government done to help or hinder telehealth use in MAT therapy? 

Hurley: In Rhode Island, Governor Daniel McKee has issued an executive order every 30 days in response to the public health emergency to allow providers to use telemedicine, including telephonic services – and for those services to be reimbursed at the same rate as in-person services.

It is important to note that this was insightful because there was actually an increased utilization of counseling due to the stressors of COVID and due to the removal of access issues. Third party payers became reluctant to accept this increase in costs without the opportunity for due diligence. So, the way the governor handled that was via an executive order issued every 30 days allowing reimbursement to providers because she was aware of the cost of making changes to accommodate the new situation - for example, purchasing new laptops and telephonic equipment, additional training for engagement via telemedicine, etc.   

On a federal level, the Substance Abuse and Mental Health Services Administration (SAMHSA) has relaxed rules for methadone take-homes in order to decrease exposure to COVID, and opioid treatment programs (OTPs) such as CODAC’s were able to exercise this unprecedented freedom.   

Recently, Senators (Sheldon) Whitehouse and (Rob) Portman introduced the Comprehensive Addiction and Recovery Act (CARA 3.0), which references telemedicine, including telephonic services. That’s important progress. 

Q. Why is MAT therapy so important right now? 

Hurley: Now more than ever the field of addiction treatment and the proven science behind MAT are essential, as we face soaring opioid overdose and death rates, as documented by CDC, during the COVID pandemic. Basically, the field still suffers from stigma associated with addiction - and regulations have not changed in decades, save for the emergency and temporary pandemic measures. Overregulation and under-compensation are the direct results of decades of stigma. We need to more fully understand that addiction is a chronic, relapsing disease of the brain and it needs to be treated with the best scientific approaches and medicine possible - and telemedicine is an important component. 

Q. What can or should be done to improve telehealth use in MAT therapy? 

Hurley: Providers need continued reimbursement for MAT and telehealth services, with parity. And we also need support for securing equipment and continuing training. Some of this can happen through grants and funding, but we do need some changes in the current policies of Medicaid and other third party payers relative to reimbursement rates. The reimbursement does need to be increased to assure competence and keep providers going.