The SUPPORT for Patients and Communities Act (“the Act” or “the SUPPORT Act”), signed into law by President Trump on October 24, 2018, is intended to combat the growing opioid crisis in the United States. The Act aims at preventing opioid addiction and misuse and enhancing access to care for those who have substance use disorders.

A key aspect of the Act is the expanded Medicare coverage of telehealth services to beneficiaries in their home (see Section 2001 of the Act). Currently, and historically, Medicare has restricted coverage of telehealth services to beneficiaries who reside within certain geographic rural areas and who seek such services at specific “originating sites” (patient beneficiary’s home is not included in the current Medicare definition for “originating site”). The Act amends 42 U.S.C. § 1395m(m) to eliminate these coverage restrictions for “an eligible telehealth individual with a substance use disorder diagnosis for purposes of treatment of such disorder or co-occurring mental health disorder, as determined by the Secretary [of Health and Human Services].” With this amendment in place, health care providers may now be reimbursed for providing eligible substance use disorder services to Medicare beneficiaries in their homes via telehealth. Although the Act does not provide for any “facility fee” reimbursement for telehealth services provided to beneficiaries in their homes, the Act requires reimbursement be provided to physicians and other health care practitioners furnishing these services at the same rate as they would otherwise receive if providing the same services in-person.

It is important to note that while Section 2001 of the Act takes effect on July 1, 2019, it authorizes the Secretary of the U.S. Department of Health & Human Services (“Secretary”) to implement these amendments immediately by creating a final interim rule.  The Act also mandates that the Secretary report on the impact of this legislation on: (1) the health care utilization (and in particular, emergency department visits) related to substance use, and (2) “health outcomes related to substance use disorders,” including opioid overdose deaths. The Act provides $3 million to the Centers for Medicare & Medicaid Program Management Account in order to carry out these reporting requirements, which must be completed within five years.

Another key aspect of the Act mandates that the U.S. Attorney General (“Attorney General”) promulgate final regulations that specify (1) “the limited circumstances in which a special registration under this subsection may be issued” and (2) “the procedure for obtaining a special registration.” Under 21 U.S.C. 831(h), as amended by The Ryan Haight Online Pharmacy Consumer Protection Act of 2008 (“Ryan Haight Act”), this special registration would allow health care providers to prescribe controlled substances via telemedicine when legitimately necessary, including when an in-person evaluation is not possible. As discussed in one of our recent TechHealth Perspectives blog posts, despite the statutory mandate in the Ryan Haight Act passed more than eight years ago, the Attorney General has not yet issued any regulations or guidance on how to obtain this special registration. The Drug Enforcement Administration (“DEA”), the federal agency delegated authority to promulgate these regulations by the Attorney General, has also not promulgated any regulation or other guidance addressing special registration. The SUPPORT Act gives the Attorney General until October 24, 2019, to promulgate its final regulations on this matter.

Epstein Becker & Green plans to discuss the Act’s numerous provisions in greater detail in future Client Alerts.

Much of the recent media scrutiny may suggest that Texas has gotten a bad rap when it comes to telehealth. But have recent reports painted an incorrect or unfair picture of telehealth innovation in Texas? The TexLa Telehealth Resource Center (“TexLa TRC”) certainly thinks so.

Recent media attention focused on Texas telehealth innovation suggests Texas is behind the telehealth curve. In a recent report, the Texas Business Association said, “Texas lags behind other states in establishing a supportive regulatory environment for the expansion of these services,” while the American Telemedicine Association ranked Texas as one of the worst states for provision of telehealth services in its May 2015 and January 2016 [1] state report cards. Additionally, the ongoing litigation between Teladoc and the Texas Medical Board (“TMB”) over a rule that requires physicians to see patients face-to-face before providing remote care has been viewed by some as stifling telehealth innovation until the litigation is resolved. Amicus curiae briefs filed in support of Teladoc pertaining to the ongoing litigation, including one filed just last month by the Federal Trade Commission and the Department of Justice, arguing the TMB has engaged in anticompetitive behavior, further bolsters the view that Texas does not support telehealth innovation.

However, the TexLa TRC has a different perspective. Not only is telehealth innovation in Texas not being stifled, but rather, it is growing. The TexLa TRC receives weekly calls from companies and providers who want to stake their claim in the Texas telehealth market. A recent survey reveals there is support in Texas from patients, providers, and employers to increase access to telehealth services throughout the state. According to the TexLa TRC, Texas has sought to promote telehealth innovation for years, and will continue to do so for the foreseeable future. For example, the Children’s Health System of Texas has successfully penetrated the telehealth market in Texas and has plans to expand these services to markets outside of Texas in the near future. The Hospital’s school-based initiative, one of several telehealth services it provides to patients in the community, began in 2013 in just two Dallas-area preschools but already has spread to 57 Dallas-area schools by early 2016 and has plans to continue to expand.

The outlook for telehealth in Texas is positive. During Summer 2016, various telehealth stakeholders including physicians, telehealth industry groups, and insurance companies, met behind closed doors to draft a compromise over how best to deliver healthcare remotely. The TexLa TRC believes these telehealth stakeholders are still working together to find common ground to redraft telehealth language before the Texas legislature meets in January.

[1] Access to the January 2016 report is available by registering for free with the American Telemedicine Association.