The COVID-19 crisis has increased the need for behavioral services and has also led to some opportunities for providers. In order to comply with social-distancing guidelines from the Centers for Disease Control, and to encourage the use of telehealth so that more urgent cases may utilize ERs and clinics, states, the Centers for Medicare & Medicaid Services (CMS) and the Substance Abuse and Mental Health Services Administration (SAMHSA) have instituted some significant changes which affect: 1) access to behavioral health services, 2) the types of professionals who may deliver them, and 3) the types of technology available for care. Many states have waived licensure requirements and telehealth restrictions to address the same issues. The opening of these federal and state delivery doors should enable providers to engage behavioral patients more quickly, get them into treatment, and more effectively continue to serve them while also facilitating easier reimbursement.

The following is a brief summary of some changes currently impacting behavioral health providers.

Who May Provide Services

Current CMS guidance says distant site practitioners for telehealth will now include physicians, advanced practice nurses, physician assistants, clinical social workers, and clinical psychologists, among others. (The CMS Telehealth Provider Fact Sheet is available here: https://www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet. 

  •  Services requiring direct supervision may now have that supervision provided virtually.
  •  Inpatient facilities and hospitals (including psychiatric) will be encouraged to use PAs and NPs to the fullest extent possible under state law to order tests and medications. (CMS Guidance from March 30 can be found here: https://www.cms.gov/files/document/covid-19-physicians-and-practitioners.pdf.)
  •  Most U.S. states have loosened provider licensure regulations to allow either compensated or volunteer healthcare professionals to practice in the state during an emergency. In addition, state Medicaid programs have issued state-specific guidelines, some of which are discussed below.

Telehealth Services

Medicare has previously covered telehealth on a limited basis. Now, under the Coronavirus Preparedness and Response Supplemental Appropriations Act and CMS regulatory waiver authority (especially the use of § 1135 Waivers: https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertEmergPrep/Downloads/1135-Waivers-At-A-Glance.pdf), Medicare will temporarily pay clinicians to provide expanded telehealth services in order to facilitate greater access to care under more circumstances. Here are some significant changes:

  •  Patients may be seen by video conference in their homes without travel to a qualifying “originating site.”
  •  Visits are no longer limited to live interactive audio and video telecommunications, but (subject to state requirements) may be by audio alone (telephonic) or email alone.
  •  Under its enforcement discretion authority, HHS will not conduct audits to ensure that a prior established relationship exists between the particular provider and the patients, clearing the way for initial consults via telehealth without a physical exam.
  •  CMS is temporarily reducing paperwork requirements to allow clinicians to spend more time with patients.
  •  CMS has added 80 additional Medicare services covered under telehealth, including group psychotherapy, as well as certain psychological and neurological tests.
  • SAMHSA: https://www.samhsa.gov/sites/default/files/considerations-care-treatment-mental-substance-use-disorders-covid19.pdf is recommending that outpatient treatment be used to the greatest extent possible, reserving inpatient care for those whose needs are life-threatening.   

Telehealth Coverage – Prescriptions and Getting Paid

COVID-19-related healthcare services, such as testing and treatment, are covered under federal programs, as are diagnosis and treatment of non-COVID-19 conditions like mental health counseling or adjustment of prescriptions. These conditions, of course, may be aggravated by the stress of the pandemic and thus “related” to the crisis. Some states are approving licensing waivers only for practitioners who will be providing direct COVID-19-related care. It remains to be seen how narrowly states will interpret these requirements. Some state insurance regulatory agencies have issued directives to commercial payors to expand access to telecounseling, or to cover telehealth to the same extent and at the same rate as in person services. While there are many unresolved questions, it is clear that the intent of both federal and state programs is to expand services, both as to covered conditions and as to who may provide them during the emergency.

  •  Telemedicine encounters will utilize the same CPT codes as if the encounter were in person, but with an additional Place of Service Code to indicate the service was provided by telemedicine. There have been conflicting reports from CMS regarding which POS codes to use; more specific advice on this issue will require closer scrutiny.
  •  Visit reimbursement will be paid at the same rate as regular, in-person visits (See CMS Press Release: https://www.cms.gov/newsroom/press-releases/trump-administration-makes-sweeping-regulatory-changes-help-us-healthcare-system-address-covid-19.)
  •  Providers can waive Medicare copayments for telehealth services in some cases.
  •  CMS has waived the requirement at 42 CFR §485.635(d)(3) that medication administration be based on a written, signed order provided the practitioner authenticates the order in writing as soon as possible after the fact.
  •  During the crisis Medicare Part B will cover Opioid Use Disorder treatment including MAT, counseling, drug testing, therapy.
  •  SAMHSA has given Opioid Treatment Programs guidance that all stable patients may receive a 28 day take home dose of medication here: https://www.samhsa.gov/sites/default/files/otp-guidance-20200316.pdf
  •  SAMHSA has useful links to FAQs, diversion control, sample policies for Medication Assisted Treatment and TAP 34 for Behavioral Health Treatment Program Disaster Planning here: https://www.samhsa.gov/medication-assisted-treatment.
  •  HHS/OIG will encourage providers to reduce or waive cost-sharing for telehealth visits paid by federal programs
  •  Virtual “check-ins” originated by patient will be reimbursed, with some limitations, and are no longer confined to rural settings . These E-visits generated by the patient via on-line patient portals (when there is an established relationship) may now be billed for a limited number of minutes under the new CPT codes. Some further guidance regarding therapy services, LCSW services and a complete list of the new telemedicine services provided can be found by following the links at the “Physicians and Other Clinicians” CMS Update here: https://www.cms.gov/files/document/covid-19-physicians-and-practitioners.pdf and by consulting the Medicare Telemedicine Health Care provider Fact Sheet referenced above.
  •  A complete list of Medicare covered telehealth services is available for download here: https://www.cms.gov/Medicare/Medicare-General-Information/Telehealth/Telehealth-Codes.
  •  SAMHSA will allow the use of telehealth or telephone for initial evaluations and for consideration of the use of buprenorphine (but not methadone) for Opioid Use Disorder. To guide practitioners at Opioid Treatment Programs, SAMHSA issued some answers to Opioid Use Disorder Prescription FAQs (https://www.samhsa.gov/sites/default/files/faqs-for-oud-prescribing-and-dispensing.pdf) on March 19, 2020 which gives OTPs medication exceptions and some essential directions as to when and how buprenorphine may be used.
  •  The DEA has temporarily waived enforcement of the in-person initial exam required by the Ryan Haight Act during the crisis, and answers other controlled substance FAQs here: https://www.deadiversion.usdoj.gov/coronavirus.html.

Conforming Privacy Regulations

The CARES Act contains Section 3221 (https://www.govinfo.gov/content/pkg/BILLS-116hr748enr/pdf/BILLS-116hr748enr.pdf)  “Confidentiality and Disclosure of Records Relating to Substance Use Disorder,” amending 42 USC 290dd-2, which will have a major impact on SUD/Addiction patient privacy. To date, 42 CFR Part 2, the federal SUD confidentiality statute, operated parallel to, but not congruous with, HIPAA privacy protections. Part 2 was enacted in the 1970s during a time of greater SUD stigma, and in recent years, energized by the opioid crisis and now by the COVID-19 emergency, many addiction treatment providers have pushed for clarity and better alignment between the two most significant privacy laws they have to interpret every day. The Congressional intent in §3221 appears to have been: 1) to conform confidentiality statutes, 2) to minimize obstacles to medical information sharing between providers, regarding individual SUD patient history and treatment, and 3) to address the immediate public health emergency by allowing re-disclosure to healthcare providers without a new consent.

In a huge step towards conforming the HIPAA and Part 2 regulations, Section 3221(b)(1)(b) of the CARES Act will allow Part 2 programs to share information with other providers or business associates for the purposes of “treatment, payment, and healthcare operations as permitted by the HIPAA regulations,” provided the patient has given prior written consent. Re-disclosures are allowed for the purposes of treatment, payment and healthcare operations, but the consent may also be revoked at any time. The Act does not operate only in one direction; some additional patient rights are added. The CARES Act prohibits discrimination against individual patients resulting from the disclosure of Part 2 records with respect to further healthcare treatment, employment, housing, or access to social services or benefits. Additionally, some of the Notice requirements of HIPAA—Privacy Practices, Breach Notification, and Accounting of Disclosures—now apply to Substance Use Disorder records. Finally, Part 2 records continue to be protected against disclosure in criminal proceedings by requiring a court order or written consent, but the use of records in civil or administrative agency proceedings will now also require a court order.

Providers should view these changes as reforms which bring an outdated Part 2 into the 21st century. The changes should also help providers in their daily operational dilemmas about whether to disclose records or not. For example, treatment providers burdened by subpoenas for records in divorce, child custody and civil cases, may now ask for a Court order, letting a judge determine whether the records should be produced. SAMHSA will continue to interpret 42 CFR Part 2, but these CARES Act confidentiality changes override any contradictory regulatory statements by SAMHSA. More significantly, the CARES Act changes will last beyond the COVID-19 emergency.

Prior to the enactment of the CARES Act both SAMHSA and CMS were on record as indicating some relaxed privacy standards during the crisis. To ensure Substance Use Disorder services are uninterrupted, to foster social distancing, to address closed provider offices, SAMHSA issued the “COVID-19 Public Health Emergency Response” guidance here: https://www.samhsa.gov/sites/default/files/covid-19-42-cfr-part-2-guidance-03192020.pdf, which encourages providers to use telehealth, and telephonic communication when possible, and waives written patient consent in those cases. At CMS, the Office of Civil Rights/OIG (the enforcement arm for CMS) has indicated they will use “enforcement discretion,” and explicitly waived penalties for HIPAA violations that in good faith provide service to patients during the crisis. OCR does expect that providers will use common sense safeguards to limit incidental disclosures, such as private space, lowered voices, and no speakerphones. For now, good faith inadvertent interceptions will not trigger penalties.

Some Key State Expansions for Telepsychiatry

  •  The California Dept. of Health Care Services has stated that expanded telehealth services will be reimbursable by the Medi-Cal Mental Health and Drug programs. DCHS does not restrict the location of telehealth services, and does not require any particular communication platform. Out-of-state personnel entering CA to assist in preparing for, responding to, mitigating the effects of, and recovering from COVID-19 are permitted to provide services similar to locally licensed providers, subject to the approval of the Emergency Management Services Authority. California’s CMS 1135 Waiver was approved March 23, 20202 and
    •  temporarily suspends fee-for-service prior authorization requirements,
    •  delays Medicaid fair hearings,
    •  temporarily enrolls providers who are enrolled in some other state Medicaid agency, or in Medicare, and
    •  California may reimburse otherwise payable claims from out-of-state providers, given in alternative settings, from March 1, 2020 throughout the end of the emergency.
  •  In order to promote the use of the use of telehealth during the crisis, California’s Managed Care Division (DMHC), which regulates PPOs and HMOs in addition to Medi-Cal (a total of 120 health insurance plans covering 26 million people), issued an All Plan Letter (http://www.dmhc.ca.gov/Portals/0/Docs/OPL/APL%2020-009%20(OPL)%20-%20Reimbursement%20for%20Telehealth%20Services%20(3_18_20).pdf?ver=2020-03-18-105612-547) on March18, 2020, which requires that all health plans under its regulation reimburse providers at the same rate for telehealth services as for those delivered in person.
  • Florida’s Surgeon General issued Emergency Order 20-002 (http://www.flhealthsource.gov/pdf/emergencyorder-20-002.pdf) allowing practice by health providers who are not licensed in Florida but have active unrestricted licenses in another state. Out-of-state healthcare professionals are not even required to register with the Dept. of Health, a process which normally causes delay. The Order also provides that some Florida MDs may use telehealth instead of an initial in-person exam. The Florida Dept. of Health/Licensing will expedite enrollment of facilities and licensing of providers by waiving screening requirements such as fingerprints, site visits and fees. Florida will also waive prior authorization requirements to allow services in alternative settings such as temporary shelters.  
  • Michigan will expand access to services by allowing Medicaid beneficiaries to receive services in their homes, and has encouraged private insurers to cover the use of virtual care as well as waive cost-sharing for certain services. Blue Cross Blue Shield of Michigan, Meridian, CVS Health and others are promoting telehealth care and waiving cost-sharing. Michigan Dept. of Health and Human Services Bulletin 20-13 (https://www.michigan.gov/documents/mdhhs/MSA_20-13_684352_7.pdf) expands telehealth to include telephone only communication. By Executive Order (https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523481--,00.html), Michigan has lifted requirements about licensing and registration of out-of-state physicians, physician assistants, nurses and pharmacists. 
  • The Texas Medical Board has approved telephone-only consults and indicated an intention to loosen circumstances surrounding physician licensure. The Board (https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523481--,00.html) requested and received from the Governor authority to temporarily suspend the regulations of the Texas Telemedicine Statute at Title 22, Chapter 174, when those procedures would delay timely treatment. The Governor (https://gov.texas.gov/news/post/governor-abbott-waives-certain-regulations-for-telemedicine-care-in-texas) also instructed the Texas Dept. of Insurance to require that any state-regulated health insurance plan reimburse contracted healthcare professionals for telehealth consults at the same rate they would have received for in-person visits. Both the expanded telemedicine coverage, and the commercial health plan requirement for reimbursement parity apply to mental health counseling.  

The American Psychiatry Association has provided a Telepsychiatry Toolkit (https://www.psychiatry.org/psychiatrists/practice/telepsychiatry/toolkit) with guidance on such topics as clinical considerations, administrative and technical requirements for software and reimbursement. Practitioners transitioning patients to telecommunication during the crisis can find information here supporting that effort. In addition the APA provides links to 30 commercial payors describing extensions of coverage and waivers of fees during the crisis. The same article covers practice guidance for a spectrum of behavioral health providers located here: https://www.psychiatry.org/psychiatrists/covid-19-coronavirus/practice-guidance-for-covid-19.

As expected, there are daily announcements from CMS, SAMHSA and the various states with further information on an evolving and complex situation in response to the COVID-19 crisis. This is necessarily a very brief summary of some broad changes and expansions with significant impact. Waller attorneys can expand on any issue summarized here for further clarification.