Behavioral Health Law Registry | September 2022


Welcome to the big book

Welcome to the fifth issue of Greenberg Traurig’s Quarterly Behavioral Health Book, which keeps behavioral health and integrated health providers abreast of legal and regulatory developments in behavioral health. Each quarter, we highlight recent legal developments, including but not limited to audit risks, significant litigation, enforcement actions, and changes in laws or regulations related to behavioral health such as health confidentiality, privacy and/or security issues, consent issues, data-sharing allowances, and other cutting-edge arrangements and issues faced by behavioral and integrated healthcare providers.

CMS Strengthens Behavioral Health Care for Medicare Beneficiaries

Deputy Administrator and Director of Medicare Meena Seshamani focused on mental health and substance use disorders for Medicare beneficiaries. The COVID-19 pandemic has necessitated an increased focus on behavioral health needs. Although some of the changes are temporary, many of the approaches taken by Medicare could become permanent.

Director Seshamani says timely behavioral health care can be “life changing” and that behavioral health care has a “central role in keeping people healthy”. In May 2022, the Centers for Medicare & Medicaid Services (CMS) released a strategy to address the national mental health crisis; now, the agency is reinforcing some key issues going forward:

1. An evidence-based approach to removing barriers to care and services for emotional and mental well-being. This will be done by evaluating more than $1 trillion in claims that cover more than 63 million Americans to identify those challenges in obtaining behavioral health care services and improvements in payment, coding and coverage of these services.

2. The ability of licensed behavioral health practitioners to provide and be compensated for the services they provide. Specifically, CMS is proposing in the CY 2023 Physician Fee Schedule (PFS) to allow Licensed Professional Counselors (LPCs), Marriage and Family Therapists (LMFTs) and other types of behavioral health practitioners to provide behavioral health services under general (rather than direct) supervision.

3. CMS also offers to pay licensed clinical psychologists and clinical social workers to provide integrated behavioral health services as part of the patient’s primary care team.

4. Behavioral health for chronic pain in care has not been adequately addressed. The proposed rules include new bundled payments for team management and chronic pain treatment.

5. Another key issue is ensuring opiate treatment and recovery services for beneficiaries who are homeless or live in rural areas. Accordingly, CMS proposes to cover these services from mobile units.

Comments on these proposed changes are expected in early September 2022, and many will likely be finalized or strengthened in the CMS Final Rule in PFS CY 2023.

CMS releases updates on PHE waiver flexibilities

On August 18, CMS Deputy Chief Administrator Jonathan Blum sent out a blog post to Medicare providers, vendors and manufacturers, encouraging them all to create a roadmap for ending the public health emergency ( PHE). In particular, the blog states that “many waivers and extended flexibilities will expire upon the eventual end of the PHE” as they were used for the COVID-19 pandemic, a period during which extraordinary circumstances necessitated the waiver of certain requirements. . The PHE has been extended until October 15, 2022, and the Secretary of the US Department of Health and Human Services has said he will give 60 days’ notice before the PHE ends – and it hasn’t happened yet. product, suggesting at least one more extension is coming. CMS is assessing all issues, both in its attempt to identify ways to better prepare for these types of emergencies, as well as identifying allocations that should be permanent, such as the expansion of telehealth for the diagnosis, assessment or treatment of mental disorders. ailments, the expansion of which has been finalized and will continue after the PHE following the 2021 Consolidated Budget Law.

However, some flexibilities that were useful at the start of the PHE are no longer needed, e.g. . CMS ended some of these temporary waivers in April 2022 and is now focused on reinstating regulatory requirements to ensure that the physical, mental and psychosocial needs of residents of long-term care facilities are met.

CMS has also published its own roadmap for the eventual end of Medicare PHE waivers and published fact sheets that summarize the current state of Medicare Blanket waivers and flexibilities by provider type as well as applicable community flexibilities. Medicaid, and will continue to update these resources to ensure stakeholders have access to up-to-date and accurate information during this time of change.

$13 billion invested in mental health initiatives in the United States by the bipartisan Safer Communities Act

Although the Bipartisan Safer Communities Act, Public Law No. 117-159, signed into law on June 25, 2022 (the “Act”) was established primarily in response to gun violence in America, it also offers the opportunity to facilitate access to mental health services. for those who need such services. Specifically, in addition to its gun control and safety provisions, the act emphasizes mental health and provides significant financial support for mental health and use disorder services. of substances (TUS), both at school and community level.

The law earmarked $800 million for the Substance Abuse and Mental Health Services Administration (SAMHSA) within the Department of Health and Human Services (HHS), the federal agency primarily responsible for supporting treatment and prevention services. in community or school mental health. SAMHSA will oversee the expansion or creation of several statutorily funded programs, including: (1) $250 million in funding over four years for the Community Mental Health Services Block Grant supporting adult mental health services and children ; (2) $40 million in funding to the National Child Traumatic Stress Network for children who have experienced traumatic events; (3) $240 million in funding over four years for the Advancing Wellness and Resilience in Education (AWARE) project, designed to help children and youth in need of mental health services by making it easier to identify these children, improving access to treatment and educating school employees about mental health; (4) $120 million in funding over four years for the Mental Health Awareness Program, which provides training to school staff on how to recognize mental illness and provide initial counselling; (5) $80 million in grants to support pediatric specialists who want to access mental health expertise in treating their patients, plus an additional $60 million over five years for mental health training for clinicians who treat children; (5) $150 million in funding for the National Suicide Prevention Lifeline to enable states to implement the new three-digit dialing code, 988, which provides confidential 24/7 support. 7 for people in a suicidal crisis or in emotional distress.

The act also provides more than $2 billion in funding to the Department of Education to create a variety of school safety and crisis prevention/response programs, as well as to improve teacher training. school staff on mental health issues and to provide school mental health services. professional resources such as social workers and psychologists to meet the mental health needs of students.

Another major funding recipient under the act is the Medicaid Certified Community Behavioral Health Clinics (CCBHCs) program, which will receive $8 billion in total funding under the act. CCBHCs are open 24/7 and provide mental health (including treatment for substance use disorders) and behavioral health services to everyone, regardless of ability to pay. Originally created in eight states through a Medicaid demonstration program, CCBHCs will be significantly expanded under the law. Specifically, from 2024, new Planning Grants may be awarded by CMS to States developing proposals, allowing up to 10 new States to be selected to participate in the CCBHC Demonstration Program every two years.

The law also requires CMS to provide advice to states on how to increase access to telehealth care under Medicaid and the National Children’s Health Insurance Program (CHIP), including, but not s limited to, strategies related to training and provision of resources for providers and patients, best practices for providing mental health and SUD services via telehealth in schools, and ways to ensure availability of telehealth resources for Medicaid and CHIP enrollees.

Although the law provides billions of dollars of investment in mental health access and service initiatives, there remain several issues largely unaddressed by the law, such as strengthening the behavioral health workforce, increasing the provider reimbursement and mental health parity.

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