Editor’s Note: In a new report for the California Health Care Foundation, summarized below, Manatt Health discusses the impact of key legal changes that supported the delivery of community behavioral health services in California during the early months of the COVID‑19 pandemic. In addition, the report identifies opportunities for long-term policy reform. Although focused primarily on Medi-Cal (California’s Medicaid program), the report also addresses legal changes that affected the Medicare program and commercial health plans.
The authors undertook two primary tasks in preparing this report. First, they prepared a compendium of the relevant legal actions adopted in response to the COVID-19 pandemic through California and federal laws, regulations, waivers or other regulatory guidance. Second, they conducted interviews with four stakeholders who collectively possess a deep and diverse set of experiences in California’s behavioral health system. Click here to download a free copy of the full report.
The COVID‑19 pandemic has created immense challenges for California’s community-based behavioral health care system and the people it serves. Traditional in-person service models for mental health and substance use disorders presented a risk of contagion as the pandemic took hold. At the same time, deferring care for weeks or months created grave risks for individual health and welfare, particularly as pandemic-related stressors drove an increase in the prevalence and severity of behavioral health conditions. Recognizing these challenges, both the federal and California state governments implemented numerous legal reforms aimed at supporting providers’ efforts to slow the spread of the coronavirus while preserving access to needed services in a time of social distancing and economic crisis.
Because so many rules changed so quickly, the pandemic created an opportunity to test policy changes that have long been pursued by behavioral health advocates. The vast majority of these changes were implemented on a temporary basis, with sunset dates linked to either the federal Public Health Emergency declared by the U.S. Department of Health and Human Services, effective January 27, 2020, or the State of Emergency declared by the California Governor on March 4, 2020. Longer-term changes may require policy revisions that reflect a rebalancing among competing priorities, given that emergency response measures typically prioritize flexibility, access and harm reduction over considerations related to oversight, quality measurement and cost control.
The table below outlines the temporary response measures that were most important in supporting access to high-quality outpatient and residential behavioral health services, along with the most promising opportunities for long-term reform.
Table 1: COVID-19 Behavioral Health Care Legal Changes
High-Impact Pandemic Response Measures
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Opportunities for Long-Term Reform
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1. Coverage for Telehealth Services
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- Expanded coverage for telehealth services under Medi-Cal, Medicare and commercial health plans
- Permitted additional types of “originating” and “distant” sites
- Granted flexibility on telehealth technology and privacy rules, including by expanding the types of permissible telehealth platforms
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- Enhance coverage across all payers for established telehealth modalities (video and telephone) in clinically appropriate circumstances
- Evaluate additional remote modalities, such as texting-based services
- Establish telehealth reimbursement policies that promote patient choice and incentivize the right care at the right place at the right time
- Eliminate unnecessary administrative barriers to telehealth access, such as restrictions on originating and distant sites or requirements for written consent
- Develop an expedited licensure pathway for out-of-state psychiatrists seeking to deliver telepsychiatry services to California residents
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2. Medi-Cal’s Cost-Based Reimbursement System
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- Allowed counties to pay providers a fixed amount each month, subject to subsequent reconciliation based on actual volume and costs
- Added new types of reimbursable costs and raised the cap on administrative costs
- Substantially increased reimbursement rates for certain behavioral health services
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- Move away from a cost-based system toward a more flexible system that minimizes administrative burden, incentivizes value-based care, and supports financial stability for counties and providers in times of crisis
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3. Controlled Substances and Prescription Drugs
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- Enhanced flexibility for treatment of opioid use disorder, including Narcotic Treatment Programs (NTPs), with respect to telehealth assessments and counseling, take-home dosing, and hand delivery of medications
- For non-opioid controlled substances (including certain psychotropic drugs), created new flexibility for practitioners to prescribe drugs based on telehealth evaluations
- Relaxed dispensing limits and prior authorization procedures for prescription drugs under Medi-Cal and Medicare
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- Evaluate policies to decrease the number of required in-person interactions in NTPs, such as increased use of telehealth and take-home dosing in appropriate circumstances
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4. Provider Licensure and Operating Standards
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- Granted flexibility for providers to modify hours of service
- Streamlined procedures for provider enrollment in Medi-Cal and Medicare
- Delayed on-site provider inspections and offered the option of virtual inspections
- Suspended requirements for practitioner license renewals and continuing education
- Extended the time for trainees to complete their qualifying exams and other licensure requirements
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- Reconsider California’s documentation requirements for behavioral health services, particularly with respect to patient signature requirements, treatment plans and progress notes
- Streamline the procedures for Medi-Cal provider certification
- Align Medi-Cal’s provider certification and service delivery standards across mental health and substance use disorder services
- Increase the use of desk reviews and virtual inspections in lieu of on-site provider surveys, when appropriate
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It goes without saying that the pandemic has been, and remains, a tragedy. COVID-19 has killed many and irrevocably harmed many more. Californians—and their providers—will be grappling for years with the psychological aftereffects of mourning, social isolation and financial hardship. These emerging needs underscore the importance of seizing this moment to reflect on lessons learned and potential next steps toward a more sustainable, more flexible and more patient-focused behavioral health system.
For additional discussion of these issues, download the full report.