APA Advocacy With Regulatory Agencies Has Been Crucial For Telepsychiatry

Who could have foreseen in the first weeks of 2020 that in the space of three years, telehealth would become ubiquitous in health care and perhaps especially psychiatry?

When the Public Health Emergency (PHE) was declared in March of that year, the federal government waived a host of restrictions on the use of telehealth to help patients receive services, including mental health services, without leaving their homes. Now, the PHE is ending, and some prepandemic regulations are back in effect—for instance, the requirement that health care professionals use HIPAA-compliant messaging software for telehealth; under the PHE, physicians and other health care professionals could use popular technology, such as Skype and FaceTime, to conduct telehealth sessions.

Some states and health care plans may continue certain flexibilities and coverage; commercial and Medicaid payers may vary widely in their telehealth policies.

Regulatory policy has been and will continue to be essential to how psychiatrists can use technology in their practice. Most people, when they think of “advocacy,” picture lobbyists on Capitol Hill meeting with members of Congress and their staffs, but working with regulatory agencies—including the Drug Enforcement Administration (DEA), the Centers for Medicare and Medicaid Services (CMS), the Food and Drug Administration (FDA), and the Substance Abuse and Mental Health Services Administration (SAMHSA)—may have an even more direct effect on psychiatric practice.

Brian Coats

“Advocacy in terms of working with regulatory agencies is really important for psychiatry and how we practice because these agencies have direct control over how psychiatrists can prescribe controlled substances, how we bill for services, and how we utilize technologies for our practice,” said Darlene King, M.D., chair of APA’s Committee on Mental Health IT. “Our committee works hard to communicate to these agencies our recommendations for the use of technology in psychiatry especially when those regulations can affect patient care.”

Over the course of the pandemic, APA’s advocacy efforts have been crucial in securing some victories for psychiatrists and their patients around the use of telehealth technology. These include the following:

• Permanent inclusion of audio only as a modality for mental health care in Medicare. In 2021, CMS expanded the definition of telehealth services that are permanently eligible for reimbursement under the Medicare program to include audio-only services for established patients with mental illness/substance use disorders who are unable or unwilling to use video technology—the only category of services now eligible for audio-only delivery on a permanent basis.

• Delay of the in-person requirement in Medicare through 2024. The $1.7 trillion Consolidated Appropriations Act of 2023 (HR 2617), signed by President Joe Biden in December 2022, included APA priorities regarding collaborative care, workforce issues, and telehealth. The package extended Medicare telehealth flexibilities instituted during the PHE and delayed the in-person requirement for telehealth services for mental and substance use disorders until December 31, 2024.

• Release of revised draft substance use disorder confidentiality (42 CFR Part 2) rules by SAMHSA. The Coronavirus Aid, Relief, and Economic Security (CARES) Act (2020) included a requirement to more closely align 42 CFR Part 2’s data protections with HIPAA’s data protections to “[better] integrat[e] substance use treatment information with other protected health information.” APA recommended revisions to the proposed rule to increase patient protections and feasibility of implementation.

Additionally, on February 24, the DEA released a statement announcing proposed rules that would allow medical practitioners to continue to prescribe controlled substances via telemedicine in limited circumstances. The proposal was published as two separate rules in the Federal Register—one that would allow physicians to prescribe a short-term supply (30 days) of Schedule III-V non-narcotic controlled medications; and a second that would allow prescription of buprenorphine for the treatment of opioid use disorder before an in-person exam is required and allow a referring practitioner to conduct the required in-person exam. At press time, it was expected that the DEA would issue the final rules in May.

As the PHE comes to an end, APA advocacy regarding regulation of technology in the practice of psychiatry will continue to be crucial in several areas. These include ongoing efforts to remove Medicare’s in-person requirements for mental health care in 2025 and beyond, working with CMS to maintain reimbursement for telehealth at the same rate as in-person care, and advocacy to allow residents to provide telehealth services under virtual supervision outside of rural areas.

APA members should look to Psychiatric News and Psychiatric News Alert for updates about the final DEA rules and more generally for guidance about the practice implications of new and revised rules. Because of the shifting nature of regulations around telehealth with the end of PHE, APA members are urged to contact the APA Practice Management Helpline, district branch, state medical board, liability insurance carrier, or other trusted resource for information about the status of telehealth coverage for their patients.

“The most important regulatory issue is how we can promote alignment across different regulatory agencies of what constitutes appropriate use of technology in psychiatry,” said King. “We want technologies to be regulated in such a way that the regulations promote quality care and ensure privacy of information. We will also be advocating for reimbursement updates so that psychiatrists can utilize the existing and new technologies for patient care.” ■