Changes to Behavioral Health Treatment During the COVID-19 Pandemic

Changes to Behavioral Health Treatment During the COVID-19 Pandemic

INSIGHTi

Changes to Behavioral Health Treatment
During the COVID-19 Pandemic
Updated November 17, 2020
Physical distancing measures and temporary stay-at-home orders associated with the Coronavirus Disease
2019 (COVID-19) pandemic have required changes in service delivery for mental health and substance
use (collectively known as behavioral health) treatment. Changes have surrounded relaxing privacy
requirements required by the Health Insurance Portability and Accountability Act (HIPAA) Rules and
increasing use of telehealth to deliver behavioral health treatment and services. Some states have also
employed other methods of service delivery—such as mobile units—for treatments that cannot be
administered via telehealth, such as medication-assisted treatment (MAT) for opioid use disorder (OUD).
Typically (i.e., outside of the pandemic), mental health treatment is administered in outpatient settings
where patients visit providers in brick-and-mortar offices, clinics, hospitals, or specialty facilities.
Treatment visits may occur on a regular basis (e.g., weekly, monthly); as a single, one-time visit (such as
for an evaluation); or in discrete episodes as full-day or overnight situations as part of more intensive
service like residential or partial hospitalization programs. As technology has advanced, some behavioral
health treatment providers have utilized telehealth (or telemedicine) modalities such as video
conferencing to deliver services (known as telebehavioral health).
Substance use disorder treatment works similarly in most instances, with exceptions for interventions
utilizing frequent administration of medications, such as MAT for OUD. In MAT using opioid
replacement therapies such as methadone and buprenorphine, patients are required by law to attend in
person for at least the initial visit for buprenorphine, and daily for methadone. Methadone is administered
on a daily basis in federally-certified opioid treatment programs (OTPs; also known as methadone
clinics), with some short-term take-home doses allowed for stable patients.
Changes to Behavioral Health Services During the
COVID-19 Pandemic
Congress and the Administration have initiated changes to behavioral health services in recognition of the
need to continue treatment during the pandemic. The third COVID-19 supplemental appropriations act
enacted by Congress—the CARES Act (P.L. 116-136)—provided $425 million to the Substance Abuse
Congressional Research Service
https://crsreports.congress.gov
IN11450
CRS INSIGHT
Prepared for Members and
Committees of Congress

Congressional Research Service
2
and Mental Health Services Administration (SAMHSA) within the Department of Health and Human
Services (HHS). This included $110 million in the form of emergency grants for behavioral health
services to states (and other grantees), with flexibility in how funds may be used. SAMHSA operates a
web page dedicated to other initiatives and information related to the novel coronavirus pandemic,
including a web page specific to MAT. HHS and SAMHSA have also recognized the disproportionate
effects the pandemic has had on certain populations, such as communities of color.
Changes to Telehealth
On March 13, 2020, the HHS Secretary implemented the Section 1135 waiver authority from the Social
Security Act in an effort to ensure that sufficient health care services are available to individuals enrolled
in the Medicare, Medicaid, and CHIP programs. Using this new authority, which was authorized by the
Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (P.L. 116-123) and other
COVID-19 related acts, the HHS Secretary waived or modified telebehavioral health-related participation
requirements under programs administered by the Centers for Medicare & Medicaid Services (CMS). For
instance, CMS announced that it would now reimburse for audio-only behavioral health telephone visits.
Other federal agencies have also addressed telebehavioral health services relative to their missions. For
example, the Health Resources and Services Administration of HHS continues to administer
demonstration programs aimed at assessing whether telehealth networks can improve access to behavioral
health in rural and frontier communities under the Substance Abuse Treatment Network Grant Program
and Evidence-Based Tele-Behavioral Health Network Grant Program. In conjunction with the federal
government, some states have waived or modified laws and reimbursement policies on telebehavioral
health during the COVID-19 pandemic.
Changes to Privacy Requirements
The HIPAA Privacy Rule governs covered entities’ (health care plans, providers, and clearinghouses) and
their business associates’ use and disclosure of protected health information (PHI). The rule delineates
when covered entities and business associates may permissibly use or disclose PHI without written
authorization, while uses and disclosures that are not expressly permitted under the rule require an
individual’s prior written authorization. In addition, the HIPAA Security Rule governs the security and
integrity of ePHI, and the Breach Notification Rule requires notification in certain cases of breaches
involving unsecured PHI.
The Office for Civil Rights in HHS issued guidance in March announcing that it is exercising
enforcement discretion and is not penalizing healthcare providers for noncompliance with requirements of
the rules where the provider is providing telehealth services in good faith during the COVID emergency.
In addition, although not limited to the emergency period, the CARES Act made changes to requirements
governing confidentiality of substance use disorder records—promulgated in the “Part 2” Rule—which
applies to individually identifiable patient information received or acquired by federally assisted
substance use disorder programs. The changes allow for sharing of covered information in a manner more
in alignment with HIPAA Privacy Rule requirements, and HHS is required to promulgate regulations to
implement these changes by no later than March 2021. These changes strive to balance improved care
coordination for individuals with substance use disorders with the heightened privacy interest around this
sensitive information.
Changes to Substance Use Disorder Treatment
The Controlled Substances Act includes limits on prescribing controlled substances by means of the
internet. SAMHSA and the Drug Enforcement Administration (DEA) are

Congressional Research Service
3
allowing prescriptions for buprenorphine for OUD to a new patient via telemedicine without the typical
need for an initial in-person examination for the duration of the public health emergency. DEA—the
agency that provides registrations to operate OTPs (which it refers to as “narcotic treatment programs”)—
had previously published a proposed rule allowing these facilities to operate a mobile component to
administer methadone. Typically, most individuals receiving methadone treatment must travel to brick-
and-mortal OTPs on a daily basis to receive their dose (with some exceptions for stable and long-term
patients outlined in 42 C.F.R. §8.12). During the pandemic, SAMHSA and DEA are allowing stable
patients to receive up to 28 days of take-home medication. DEA is also allowing alternative methods for
delivery of methadone to patients under stay-at-home orders, and interstate prescribing privileges for
providers. DEA operates a web page with more information and resources related to the COVID-19
pandemic.
Considerations for Congress
Congress may consider continuing these changes, and possibly making some of them permanent. Some in
the behavioral health field had called for some of these regulatory changes outlined here even prior to the
COVID-19 pandemic. In the near term, lawmakers could consider other strategies to help preserve
treatment capacity. For instance, one survey found that many behavioral health facilities are still in
jeopardy of closing because of the pandemic. Data on outcomes associated with these adjustments to
behavioral health service delivery could clarify if changes expanded treatment safely and effectively, and
might identify unintended consequences. In this way, the temporary changes may provide insights
Congress could consider in determining whether to permanently extend any of these policies.

Author Information

Johnathan H. Duff
Amanda K. Sarata
Analyst in Health Policy
Specialist in Health Policy

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

IN11450 · VERSION 2 · UPDATED