4 Behavioral Health Legislation Trends to Watch

This session of Congress is heading toward its close — and several points of behavioral health legislation are still not resolved.

Parity, workforce and telehealth regulations are some of the most pressing issues for stakeholders heading into 2023. A number of mental health bills are still on the table as well.

But as the clock runs out, the Bipartisan Safer Communities Act stands as a point of optimism for action on any number of behavioral health issues in Congress and within the Biden administration, sources told Behavioral Health Business.

Precipitated by the mass shooting in Uvalde, Texas, the bill appropriated billions of dollars for youth mental health services, supporting school-based mental health programs and funding support for school-based mental health professionals. The bill became law in June.

“It was framed as gun reform legislation, but the gun reform provisions were very, very narrow,” Laura Conaboy, senior vice president of national policy for the nonprofit behavioral health system Centerstone, told BHB.

The bill also funded and expanded the certified community behavioral health clinic (CCBHC) program.

In addition to the Bipartisan Safer Communities Act, the massive impact of the coronavirus pandemic has similarly motivated widespread conversations about mental health reform in the U.S., sources told BHB. Here’s a rundown of the top regulatory issues executives in the behavioral health industry are keeping an eye on.

Parity in behavioral health legislation

Payers have been frustrated by the lack of clarity around the compliance reporting process for mental health parity. Health plans have been waiting for more than two years for guidance on the matter from federal agencies, Jim Laughman, president of PerformCare, told BHB. PerformCare is part of AmeriHealth Caritas, where he Laughman is also president of intellectual and developmental disabilities solutions.

“We believe, very clearly, that we’re demonstrating and that we’re doing parity,” Laughman said. “But minus that guidance and understanding from what the federal government is looking for … that makes it difficult. Parity legislation is really important.”

At the end of September, the U.S. House of Representatives passed the Mental Health Matters Act (H.R. 7780), largely on party lines with Democrats supporting and Republicans opposing the bill.

The bill, among many things, makes it easier for the U.S. Department of Labor (DOL) to penalize payers that are not in line with federal parity laws. This frustrates payers who say there hasn’t been enough clarity around reporting requirements passed by Congress in 2021 that require payers to track non-quantitative treatment limitations (NQTLs). The 2021 law also requires DOL to assess those NQTLs.

“There hasn’t been enough guidance yet on all of the documentation and all the information that is necessary from a health plan to demonstrate and get certified as compliant with mental health parity rules,” Doug Nemecek, the chief medical officer of behavioral health for Evernorth, told BHB.

The focus for many plans now is to double down on relationships with regulators and have a hand in forming parity compliance measures at the administrative level.

“To date, as far as we know, there hasn’t been a plan that has been certified by the DOL as compliant and not have any issues,” Nemecek said, referring to the department’s scathing NQTL and parity report from January. “We don’t have anything to look back to yet to say, ‘Alright, here’s the target and now we can move forward.’”

Telehealth

Payers and providers alike would like to see telehealth flexibilities afforded by public health emergencies at the federal and state levels enumerated into law.

“We have to talk about the future of telehealth; how do we guarantee it to be part of the tools that can be used to reach people that may have been resistant to or cannot get to in-person or may not prefer in-person care?” Laughman said.

Telehealth use has remained high in behavioral health even as the most severe of social distancing provisions ended.

Many behavioral health providers utilize telehealth regularly. But the medication-assisted treatment (MAT) space saw several virtual behavioral health startups garner huge investment rounds during this time of temporary regulatory flexibility. However, with no clear indication that the flexibilities will remain, a sense of uncertainty clouds the future of these companies in their current form.

Nemecek said that not nearly enough people are accessing MAT for opioid use disorder even as the number of people dying from opioid overdose has reached historic highs. Over 108,000 people have died of overdoses — mostly synthetic opioids — in the 12 months ending with April 2022, according to CDC data.

“If regulations come back that prevent those companies from being able to deliver care in that way, we’re concerned that it’s going to have a negative impact on patients and our ability to make sure that people have access to the MAT that we want them to have access to,” Nemecek said.

Evernorth, the services and consulting arm of Cigna Corp. (NYSE: CI), has several deals with digital MAT companies including Bicycle Health and Quit Genius.

The Restoring Hope for Mental Health and Well-Being Act (H.R. 7666), sponsored by Rep. Frank Pallone Jr. (D-N.J.), includes some measures detailing telehealth oversight for government-backed health plans.

This behavioral health legislation is an amalgamation of several behavioral health-related regulations. On top of reauthorizing and funding several existing measures, it would remove the requirement that patients be addicted to opioids for a year before being admitted to an opioid treatment program (OTP) and eliminate the so-called X waiver for the prescription of buprenorphine to treat OUD.

Eliminating the X waiver

The X waiver requires special training and places panel size restrictions on providers that prescribe buprenorphine and other MAT for OUD. Many are now calling for the federal government to remove the X waiver in order to increase access to MAT for OUD by allowing more providers to prescribe buprenorphine.

Buprenorphine, itself an opioid, is used to help people manage addiction symptoms and withdrawal and is widely dispensed. About 171 million prescriptions for buprenorphine have been dispensed since 2002, according to a Drug Enforcement Administration report.

“You don’t require doctors prescribing opioids to have any extra education at all — nothing,” Pamela Greenberg, CEO and president of the Association for Behavioral Health and Wellness, told BHB. “But yet, the doctors that want to treat opioid addiction have to get additional training? Talk about disparity and non-parity.”

The Mental Health and Well-Being Act passed the House of Representatives in June. Similar to telehealth regulations and MAT, there is significant potential motivation from lawmakers to do something on the matter.

“There does seem to be support for it within Congress. … They are trying to address the opioid use crisis,” Greenberg said.

Workforce and records

The Biden administration is still formulating rules that make it easier to keep and handle substance use disorder health records, Greenberg highlighted. The CARES Act of 2021 mandated the rule change. Amending rules related to 42 CFR Part 2 would make it easier to share records.

With the ascendance of telehealth and the pain of a worsening behavioral health workforce shortage, some stakeholders also hoped to see changes in how licensed providers may practice and an increase in the use of state licensing compacts.

Presently, several master’s degree-level mental health practitioners cannot receive Medicare reimbursement for services, Conaboy told BHB.

“In the context of workforce shortage, it creates a big problem,” Conaboy said.

In September, the Senate Finance Committee released a discussion draft legislation for several measures that optimize and expand the behavioral health workforce. The discussion draft called for licensed marriage and family therapists (LMFTs) and licensed professional counselors to be able to provide care to Medicare beneficiaries.

“That could really, really open up access,” Conaboy added.

Members of the committee filed a slate of five bills that put forward real legislation entertained in the discussion draft. They are the Training Psychiatrists for the Future Act, the More Behavioral Health Providers Act, Expand Qualified Psychologist Services Act and the Protect our Physicians Act.