News & Insights
Apr 3, 2020
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.)
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), 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:
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.
Conforming Privacy Regulations
The CARES Act contains Section 3221 “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, 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 American Psychiatry Association has provided a 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.
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.
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