In June 2022, the White House Office of National Drug Control Policy (ONDCP), via the Legislative Analysis and Public Policy Association, released its "Telehealth and Substance Use Disorder Services in the Era of COVID-19: Review and Recommendations" (the "SUD Recommendations"). Although this publication does not have the force of law, it provides clear directions to legislators and agencies on advancements in telehealth for Substance Use Disorder ("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 SUD Recommendations present four recommendations for the future of telehealth. Summaries of these four recommendations are below:
- 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 should consider legislative and administrative proposals to encourage reciprocity among state licensing systems.
As an aside, many states have already begun addressing professional licensure reciprocity issues to assist with ongoing labor shortages. For example, Indiana's new Reciprocity Statute, Indiana Code 25-1-21 (the "Reciprocity Statute"), applies broadly to health care professionals, except for social workers, marriage and family therapists, mental health counselors, addiction counselors and clinical addiction counselors, and respiratory care practitioners. The Reciprocity Statute establishes a simplified application process for out-of-state health care professionals seeking Indiana licensure or certification. Applicants must satisfy the following conditions:
- Maintain a current license or certification from another state or jurisdiction which satisfies certain equivalency or minimum standards;
- Not have committed any act in any state or jurisdiction that would be grounds for refusal, suspension, or revocation of a license, certification, registration, or permit to practice the occupation in Indiana at the time such act was committed;
- Not have a complaint or investigation pending before the occupation's regulating agency in another state or jurisdiction relating to unprofessional conduct;
- Be in good standing and not have been disciplined by the Indiana agency reviewing and issuing the license or certification; and
- Pay the fee required by the Indiana board reviewing the application.
- Permanently Enact and Expand Public Health Emergency ("PHE") Telehealth Regulatory Changes
This recommendation suggests that the waivers of certain requirements, such as the originating site requirements for Medicare reimbursement of telehealth services, become permanent. The DEA is also being urged to make 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).
- Increase Funding for Mobile App and Assistive Telehealth Services
The SUD Recommendations state: "[T]elehealth 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.
- Consider the Privacy and Ethical Implications of Telehealth Use
As the PHE persists, 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." There remain ethical considerations, including issues of consent, accessibility, data use, and protection, that policymakers, legislators, and health care providers must consider such that telehealth access and services are provided ethically and honestly to patients.
You can find the SUD Recommendations 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.
We know these issues, and the future of tele-behavioral health keeps our clients up at night. We are here to assist with your behavioral health legal needs.
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