As the novel coronavirus (COVID-19) pandemic continues impacting every corner of society, Congressional leadership and leaders in the Trump Administration are mobilizing wide-ranging supports that have direct impacts on the behavioral health field and the National Council’s members. Congress passed its second response bill this week and is now turning its attention to a third legislative package, as various federal agencies provide clarity and increased flexibility to health care and other industries. The National Council has been hearing from our members about their biggest challenges and we are working hard to educate lawmakers and the Administration about the behavioral health field’s needs.
The Families First Coronavirus Response Act (H.R. 6201) was passed by Congress on Wednesday and immediately signed into law by President Trump. Additionally, federal agencies including the Centers for Disease Control and Prevention (CDC), the Centers for Medicare and Medicaid Services (CMS), the Drug Enforcement Administration (DEA), and others have been releasing guidance around a number of issues. See below for updates across these sources organized by issue area.
CONDUCTING TELEMEDICINE VISITS
CMS has clarified and provided more flexibility for states to respond to the coronavirus. The allowances outlined below will remain effective for the duration of the COVID-19 public health emergency.
- Medicaid Telehealth:
- CMS made clear to states that they already have flexibility to utilize telehealth services, including audio-only services, in their Medicaid programs. States can cover telehealth using various methods of communication such as telephonic, video technology commonly available on smart phones and other devices. No federal approval is needed for state Medicaid programs to reimburse providers for telehealth services in the same manner or at the same rate that states pay for face-to-face services.
- Note: States themselves, not CMS, are responsible for making these options, including audio-only telephonic services, available to providers.
- Telehealth and Prescriptions of Controlled Substances: The DEA has announced that for the duration of the public health emergency, registered practitioners may issue prescriptions for controlled substances to patients for whom they have not conducted an in-person medical evaluation, providing the following conditions are met:
- The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of his/her professional practice
- The telemedicine communication is conducted using an audio-visual, real-time, two-way interactive communication system.
- The practitioner is acting in accordance with applicable Federal and State law.
This temporary relief of the Ryan Haight Act has been a long-term advocacy goal of the National Council and its members. We thank all members who worked to build this case with DEA over the years to make this emergency declaration possible.
- Medicare Telehealth
- Retroactive to March 6, Medicare will temporarily pay clinicians to provide telehealth services for beneficiaries across the country. Previously, Medicare only covered particular services in specific situations, such as if an enrollee lived in a rural area and was unable to receive in-person services within a reasonable distance. A range of providers, including clinical psychologists and licensed clinical social workers, will be able to offer Medicare-covered telehealth services to enrollees based in any health care facility, including physicians’ offices, nursing homes, as well as from enrollees’ homes.
- Additionally, the Families First Act corrects language included in Congress’s first COVID-19 response package to clarify that, for the purposes of establishing a relationship with a provider to waive current prohibitions surrounding telehealth services in Medicare, any services allowable under Medicare will qualify as an existing relationship, even if Medicare was not the program paying for the service.
- Telehealth Best Practices
- The National Council has compiled a reference document that includes details on these changes and more, titled “Best Practices for Telehealth During COVID-19 Public Health Emergency.” This document is intended to provide mental health and substance use treatment providers with the background and resources necessary to help begin or expand the use of telehealth.
TELEHEALTH AND PRIVACY: HIPAA & 42 CFR PART 2
- HIPAA: The Office for Civil Rights (OCR) at the Department of Health and Human Services (HHS) announced that it will exercise its enforcement discretion and will waive potential penalties for HIPAA violations against health care providers that serve patients through everyday communications technologies during the COVID-19 public health emergency. This applies to widely available communication apps such as FaceTime or Skype when used in good faith for any telehealth treatment or diagnostic purpose, regardless of whether the telehealth service is directly related to COVID-19.
- 42 CFR Part 2: SAMHSA issued guidance related to the sharing of substance use disorder health records throughout the public health emergency. SAMHSA makes clear in the guidance, information disclosed to the medical personnel who are treating such a medical emergency may be re-disclosed by such personnel for treatment purposes as needed. SAMHSA notes that Part 2 requires programs to document certain information in their records after a disclosure is made pursuant to the medical emergency exception. SAMHSA emphasizes that, under the medical emergency exception, providers make their own determinations whether a bona fide medical emergency exists for purposes of providing needed treatment to patients.
INCREASED HEALTH FUNDING
- Federal Medicaid Funds: The federal government’s share of Medicaid payments, known as the Federal Medical Assistance Percentage (FMAP), has been increased by 6.2 percentage points. This increased assistance comes with the requirement that state Medicaid programs cover COVID-19-related treatment, vaccines, and therapeutics at no cost to enrollees as well as states not making eligibility standards more restrictive or increasing any cost sharing for enrollees.
- More Funding for CDC & NIH: The Trump Administration is updating its Fiscal Year 2021 Budget Request to include a request for an additional $45.8 billion and the necessary authorities for the Centers for Disease Control and Prevention (CDC) and the National Institutes of Health (NIH) to address ongoing preparedness and response efforts.
OTHER UPDATES
- Paid Sick Leave: The Families First Act requires employers to provide two weeks paid sick leave and up to three months of paid family leave for employees affected by the virus, the cost of which could then be claimed by the employer as a fully-refundable tax credit. The measure exempts health care and emergency responders, as well as companies with more than 500 employees. Companies with fewer than 50 employees may attain hardship waivers.
NEXT STEPS
Congress now turns its attention immediately to a third COVID-19 response package, which is rumored to focus on relief for small businesses, direct financial assistance to Americans, assistance for airlines, and a slew of health care updates such as extensions of important Medicaid programs like the Certified Community Behavioral Health Clinic (CCBHC) demonstration. The timeline for this third package is still unclear.
The National Council is hard at work advocating for its members amid these rapidly shifting federal responses. Our President and CEO, Chuck Ingoglia, focused his first monthly townhall with members yesterday on the National Council’s COVID-19 efforts and focus. We have compiled a list of resources for the public and for our members that cover topics ranging from updates from the CDC and the World Health Organization all the way to tips and tricks on managing anxiety associated with the coronavirus. This site will be updated regularly, so continue checking back often for more resources. Additionally, check in with Capitol Connector each week for continuous updates as the situation evolves.
TAKE ACTION
The National Council is mobilizing our advocates to elevate these issues to their Members of Congress. To be sure that the behavioral health field is supported throughout this global COVID-19 crisis, please take time today to complete these action alerts:
- Call your Senators and urge them to include community behavioral health providers in all COVID-19 response legislation.
- Reach out to your Representative to ask them to sign onto a “Dear Colleague” letter requesting similar protections.