Brick-and-Mortar Behavioral Health Providers Best Positioned to Weather New Telehealth Regs

Facility-based behavioral health operators may be better positioned to cope with changing telehealth regulations than their virtual-only peers.

That’s because facility operators who use telehealth have the required building blocks to apply in-person treatment or telehealth as needs arise. In contrast, virtual-only companies must find other ways to partner or integrate with facility operators, according to a panel hosted by Behavioral Health Business.

Still, success with behavioral health delivered via telehealth, regardless of which regulations change, requires a dedicated focus on integrating in-person and virtual experiences, Andy Flanagan, CEO of Iris Telehealth, said during the panel.

“Virtual resources are really best used to fill gaps in access and in care,” Flanagan said. “It’s not a standalone, disconnected process to … have a telepsychiatry program or a teletherapy program.” 

The pandemic prompted an explosion in telehealth utilization. Now, the question is what a non-COVID regulatory framework for tele-behavioral health would look like.

The Drug Enforcement Administration’s (DEA) exemptions to the Ryan Haight Act stand at the forefront for many.

The DEA in March 2020 waived a key provision to the act, which requires an in-person visit before a patient is prescribed a controlled substance and then another in-person visit once every 24 months. Controlled substances, in one instance, are key to medication-assisted treatment (MAT) for substance use disorders. Many digital health startups have taken advantage of the loosened regulatory environment.

While movement in Congress could bring changes, the DEA is almost three years late in promulgating rules allowing MAT providers to prescribe controlled substances via telehealth.

The resumption of an in-person requirement may leave some providers in a lurch, Alexis Bortniker, a health care lawyer and partner with the law firm Foley & Lardner LLP, said during the panel.

“These conversations with clients are twofold: We want to retain regulatory compliance. But we can’t dump our clients if we’ve been serving them for the last years via telehealth because of an in-person requirement,” Bortniker said.

She notes that the conversation has changed around dealing with the Ryan Haight Act as no major reform on the matter has materialized. Today, conversations with her clients have changed from “I don’t think you have to worry about it now; I think you’ll have time to deal with it later,” to “it’s time that you start coming up with a backup plan.”

Bortniker explained that the DEA exemption to in-person visits is separate to the public health emergency that’s issued by the secretary for the U.S. Health and Human Services Department. The DEA may extend the waiver on its own after the PHE expires.

Collaboration between operators

The lack of movement on telehealth regulations and the Ryan Haight Act could drive more collaboration within the behavioral health sector, promoting better care integration, Bortniker said.

“I think it’s trickier for those companies that started telehealth-only because they’ve never had to think through how that relationship between a facility and the providers would work,” Bortniker said. 

Pointing to Medicare reimbursement rules around site origination for telehealth, Caiti Crum, clinical director for therapy at Foresight Mental Health, said that care quality is vital for telehealth’s continued role in behavioral health, adding that demonstrating care quality could influence the outcome of regulation.

“One thing that really needs to remain a priority as we see draft legislation is the focus on the quality of care,” Crum said. “We really need to ensure that our providers have the right training and the right standard of care and expectations for telehealth visits, so that [the] unique and beautiful connection that therapists have with their clientele is preserved, maintained, augmented through telehealth.”  

“So that’s one thing that we’re doing here to respond to and anticipate hopeful results of the draft legislation,” Crum added.

Bortniker said that traditional, facility-based providers are more likely to have the needed experience to deal with heightened or new regulations around telehealth as the pandemic regulatory era continues to abate.

“I think traditional brick and mortar health care is used to dealing with a lot of things like payment models, and as payment models change, patient interactions with those change,” Bortniker said.

Preserving telehealth’s reputation

Regulators have already leveled some degree of added attention to telehealth as virtual-only operators such as Cerebral Inc. have faced added scrutiny from the public, other businesses and government actors, as the panelists pointed out.

Earlier in the month, The U.S. House Committee on Oversight and Reform requested information from the DEA detailing how it has pursued and how it intends to prevent “allegations of bad actors exploiting telehealth prescription authorities during the pandemic.”

Further, Cerebral is under investigation by the U.S. Attorney’s Office for the Eastern District of New York.

“It really creates a huge problem: think about it. It’s the worst possible moment for Cerebral,” to generate bad press for telehealth in behavioral health, Flanagan said. “It’s a hyper-charged political environment and all of us just want to deliver care.”

Flannagan also said that greater enforcement happens when “we leave the middle of the playing field of clinically sound practice of medicine.”

Telehealth and other digital innovations in behavioral health can’t leave out medical standards.  

Despite their anxieties, Bortniker and Flanagan expressed confidence that regulators and lawmakers will see bad actors as edge cases that don’t represent the wider behavioral health and telehealth intersection.

The burgeoning role of telehealth in behavioral health has also reinvigorated deeper questions for clinicians and behavioral health organizations.

“From a clinical perspective, [telehealth] … has reinvigorated a deep connection with our reason for being — our reason for our adherence to our various licenses and our reasons for showing up,” Crum said. “That has resulted in a real review and refinement of our ethics, our standards of care, our quality of care from end to end… All of that has been nourished by the reliance on telehealth over the last few years.”