Eye on Telehealth – Major Medicare Expansion for Treatment of Opioid Abuse Effective July 1, 2019

January 14, 2019

By: Raul A. Tabora, Jr. and Craig W. Anderson

Starting this July 1, 2019, new laws and regulations will expand the payment for telehealth for those having certain substance use disorders by allowing Opioid Treatment Programs (OTP) to provide telehealth visits to Medicare beneficiaries while they are at home. In an interim final rule implementing a provision from the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act (referred to as the “SUPPORT Act”), CMS is removing the “originating site geographic requirements” and adding the home of an individual as a permissible originating site for telehealth services furnished for purposes of treatment of a substance use disorder or a co-occurring mental health disorder. The rule is available here.

Traditionally, the Medicare Act has allowed CMS to specify additional Medicare telehealth services using an annual process to add or delete services from the Medicare telehealth list. However, section 1834(m)(4)(C) of the Act limits the scope of Medicare telehealth services for which payment may be made to those furnished to a beneficiary who is located in certain types of originating sites in certain, mostly rural, areas. The law does not provide any authority to change the limitations relating to geography, patient setting, or type of furnishing practitioner because these requirements are specified in statute. Acting now under changes enacted under the SUPPORT Act, both the rural limitations and the “patient setting” limits have been removed. (Note that this also applies as well under sections 50302, 50324, and 50325 of the Bipartisan Budget Act of 2018 (BBA 18) (Pub. L. 115-123); the law removed the limitations relating to geography and patient setting for certain telehealth services, including for certain home dialysis end-stage renal disease-related services, services furnished by practitioners in certain Accountable Care Organizations, and acute stroke-related services, respectively. Future updates will cover these areas.)

The services which may be covered by these changes include all of the pre-approved telehealth HCPCS codes established by CMS to date. In this regard, section 2001 of the SUPPORT Act did not change Medicare telehealth laws which limit the scope of telehealth services to those on the Medicare telehealth list. According to the CMS Interim Final Rule, health care providers will be responsible for assessing whether individuals have a substance use disorder diagnosis and whether it would be clinically appropriate to furnish telehealth services for the treatment of the individual’s substance use disorder or a co-occurring mental health disorder. 

Further insights will be offered by Bond’s Health Law group. For example, looking at the regulations published by OASAS, “telepractice” is only permitted at originating sites authorized by OASAS. (14 NYCRR § 830.5(a)(3).) Currently, guidance provides for a host of “general program standards,” which include requirements on the originating site. Standards include requirements for such things as access to and protection of patient records, physical environment (lighting, backdrop, etc.), and training on emergency procedures. These standards do not take into account an individual’s personal residence as serving as the “originating site” of the telehealth visit. A host of issues are raised by the new Medicare reimbursement standard such as:

  1. Scrutiny of licensure issues for OTPs in New York.
  2. Standards on the Medicaid side and guidance by OASAS, OMH, OPWDD, DOH and other agencies.
  3. IT and Cybersecurity requirements for Skype, smart phones, and other technology available outside of structured settings.
  4. Interplay of telehealth visits with Medically Assisted Treatment and enhanced authority for prescriptions covering opioid abuse.