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Emergency Telehealth Use for Behavioral Health Care During COVID-19 – How One State Rose to the Challenge

This Bulletin is brought to you by AHLA’s Behavioral Health Task Force.
  • March 24, 2020
  • Anna Stewart Whites , Anna Whites Law Office

Behavioral health has always been a field that was a primed to be a natural utilizer of telehealth, but wide-spread adoption across the continuum of behavioral health care has lagged behind other specialties. When the coronavirus pandemic (COVID-19) erupted, patients who were no longer able to physically access their providers’ offices risked significant harm. For the state of Kentucky, the additional risk of harm to society if patients with substance use disorders (SUD) went untreated was of significant concern as a state continuing to battle with an opiate addiction public health crisis. Kentucky took an aggressive lead on ensuring that not just behavioral health patients, but patients across the health care continuum, could continue to receive treatment during the state of emergency.
 
Until recently, Kentucky was not well-prepared for telemedicine adoption. That all changed when Senator Ralph Alvarado joined forces with the state Office of Telehealth to enact telehealth coverage and reimbursement parity laws, and in 2019, Kentucky’s new telehealth availability and parity law went into effect.[1] The Kentucky Department for Medicaid Services (KY DMS) enacted and amended administrative regulations to expand the categories of providers able to render telehealth services to include all individuals credentialed to provide that service face-to-face.[2] The administrative regulation also allowed such providers to be reimbursed in the same manner, mandating that “[t]he department shall reimburse an eligible telehealth care provider for a telehealth service in an amount that is at least 100 percent of the amount paid for a comparable in-person service.”[3] The Kentucky Department of Insurance (KY DOI) notified all commercial payers of the requirements of the expanded law and parity.
 
In response to the COVID-19 national and statewide state of emergency, the Kentucky Governor required public facing businesses to close.[4] Health care facilities and providers were considered essential, but were guided by the Executive Branch to use remote care and telehealth care when medically appropriate to reduce the spread of disease.
 
Three barriers were immediately apparent: (1) few providers were credentialed to provide telehealth; (2) some new patients couldn’t receive care because the law required an initial face-to-face (live and in the office together) visit before prescribing or care was permitted; and (3) restrictions and limited availability to certain approved Health Insurance Portability and Accountability Act (HIPAA)-compliant communication applications, devices, or software (platforms).
 
On March 19, the KY DMS issued initial guidance affirming that that neither KY DMS nor the state’s managed care organizations could require that the patient have a prior relationship with the provider in order to have services delivered through telehealth, if the provider determines that telehealth would be medically appropriate. This included the ability for a provider to prescribe controlled substances to a patient who was seen entirely via telemedicine without an initial face-to-face encounter. KY DMS also removed restrictions on the means of such telemedicine communication platforms, urging use of HIPAA compliant software or apps, but recognizing that those might not always be available. The guidance was formalized in the Provider Notice of March 23, 2020.[5]
 
On March 20, the KY DOI followed federal guidance and removed or reduced restrictions on the type of devices, software, and platforms that may be used to perform telehealth services.[6] The agency also encouraged all payers to cover telehealth and remote care wherever possible. This occurred both during regular KY DOI quarterly calls with payers, as well as being referenced in the annual insurance guides to various specialties.[7]
 
As health care providers across the spectrum began offering telehealth to many more patients an additional two issues that had not been considered arose.
 
The first, and most surprising, was that many provider licensure boards in the state had restrictions on who could provide telehealth and when such services could be provided, or, the licensure board had never considered telehealth and thus had never addressed it in the provider licensure board regulations. Kentucky brought together its Telehealth Steering Committee, KY DMS, KY DOI, and the provider licensure authorities in a single conference call. This included not just behavioral health licensure groups but other provider types as well. On the behavioral health side, therapists, counselors, art therapy, physical therapy, and other specialties participated. The goal of this call was to ensure that all behavioral health and other providers across the state could utilize telehealth to treat patients via telemedicine. The outcome was nothing short of amazing. At the conclusion of the call, groups that needed to update their administrative regulations agreed to convene emergency meetings of their governing boards and counsel, and submit those amended regulations to the legislative and executive branches within the following 48 hours and did so. Across the spectrum of providers and care, the ability to utilize telehealth to provide services was expanded. Behavioral health groups that had already implemented telehealth earlier were able to offer guidance and support to professional licensure boards who were concerned about the efficacy of a telehealth delivery model. Providers who already had telehealth experience were generous with their knowledge and alleviated the concerns of provider groups that were new to use of telehealth
 
The second issue was the lack of basic resources for providers and patients who were using telehealth for the first time, such as patient informed consent and basic understanding of telehealth training. One again, experienced providers and other stakeholders rose to the challenge and generously cultivated templates of these necessities for widespread usage. The Kentucky Telehealth Steering Committee assembled links and guidance that providers and patients can access to guide them through the process. Many of those links were first made available the week of March 23, 2020 and existing links were supplemented where appropriate in that same timeframe.[8] All telehealth information is housed on the state telehealth website.[9]
 
From creation of emergency administrative regulations through distribution of template patient consent agreements, and discussions of telehealth etiquette, the entire state pulled together to make this happen over the course of four days. Sister states were able to follow Kentucky’s lead and put similar provisions in place through use of an Executive Order.[10]