Law Has Rx Implications

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Stephanie Kennan

Routine monitoring of medication adherence is one of the Medicaid programs that must be included under a new law passed by Congress in response to the opioid epidemic.

The recently passed opioid legislation makes improvements in treatment capacity for Medicaid patients. However, the legislation has significance for the pharmacy industry because it directs the Department of Health and Human Services to develop and disseminate materials, clarifying the circumstances of when pharmacists may decline to fill controlled substance prescriptions, such as when they suspect the prescription to be fraudulent, forged or of doubtful, questionable or suspicious origin.

On October 3, Congress passed H.R. 6, the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act (also known as SUPPORT for Patients and Communities Act). While criticized for only dealing with the edges of the epidemic, the legislation does make two key Medicaid changes to provide a better continuum of care and begins a process to help states develop better capacity for ­treatment.

Since the passage of the Affordable Care Act, Medicaid has been playing a growing role in treating patients with substance abuse disorder (SUD). The ACA increased coverage for individuals with SUDs in those states that expanded Medicaid coverage. Prior to expansion, many low-income, non-elderly adults with SUDs did not qualify for Medicaid and were often uninsured because they did not meet the eligibility requirements for federal disability programs. The ACA required states that expanded Medicaid to include SUD services as a covered benefit. Additionally, people eligible for Medicaid as part of the expansion received a benefit plan that includes all of the ACA’s essential health benefits, including behavioral health services.

However, federal statute prohibited federal Medicaid funds to cover residential treatment of SUDs in facilities that have 16 beds or less. This is known as the Institute of Mental Disease (IMD) exclusion, and some states sought waivers to include IMDs in Medicaid.

In January, the Centers for Medicare and Medicaid Services (CMS) encouraged states to seek waivers in order to provide coverage of these facilities in Medicaid. This was in response to recommendations made by the Christie Commission, formed by the administration to make recommendations on the opioid epidemic.

The House version of the legislation included a full rollback of the 1970s statute prohibiting the inclusion of IMDs, but for opioid SUD only. The Senate’s version did not include any provision related to IMDs.

The final version of the SUPPORT for Patient and Communities Act partially rolls back the statute, allowing federal Medicaid money to pay for care at residential treatment centers that have more than 16 beds for the next five years, beginning October 1, 2019. A state may elect through a state plan amendment to provide the services of an IMD, but the length of time a patient may be covered is no more than 30 days a year.

The legislation also requires a state maintenance of effort (MOE) for certain services. A state must maintain a certain level of funding for services for patients in eligible IMDs. The level of funding may not be less than the level of funding for the most recently ended fiscal year. States must also maintain the services provided through outpatient and community-based settings.

Besides adherence monitoring, other programs that must be maintained ­include:

• Evidence-based recovery and support services.

• Clinically directed therapeutic treatment to facilitate recovery skills.

• Relapse prevention and emotional coping strategies.

• Outpatient medication-assisted ­treatment.

• Outpatient withdrawal management and related treatment designed to alleviate acute emotional behavior.

• Counseling and clinical monitoring.

Maintenance of effort requirements were added to the legislation in response to advocates concerned that the inclusion of IMDs would displace resources currently going to community-based and other services.

The legislation also includes a provision for a demonstration project that is to include at least 10 states. In the first part of the 54-month demonstration project, selected states will receive a planning grant for 18 months. The next stage is a 36-month period to implement concepts to expand capacity. The purpose of the provision is to allow selected states to increase their treatment capacity with more providers participating under the state plan, or waivers to provide SUD treatment and recovery services.

The planning grants will also help assess the behavioral health treatment needs of the selected states. To be considered for a grant, states must have a state plan (or waiver), be geographically diverse, and have a prevalence of SUDs comparable to or higher than the national average.

The grants will not only provide needed funds for capacity assessment, but will also allow states to find ways to expand capacity, including increased reimbursements not otherwise ­available.

The legislation also includes enhanced payments for Medicaid health homes for patients with substance abuse disorder in states that have a SUD-focused state plan amendment approved on or after October 1. Best practices for designing and implementing a SUD-focused state plan amendment will be publicly available by October 1, 2020, based on information gathered from states currently approved under this section.

Medication provisions of the act also require:

• All state Medicaid programs to have a beneficiary assignment program that identifies beneficiaries at risk for SUD and assigns them to a pharmaceutical home program.

• All state Medicaid programs to have safety edits in place for opioid refills, monitoring of concurrent prescribing of opioids and certain other drugs, and monitoring of antipsychotic prescribing for children.

• CMS to issue guidance on Neonatal Abstinence Syndrome (NAS) treatment options under Medicaid. It also requires that a study be completed by the nonpartisan Government Accountability Office (GAO) on coverage gaps for pregnant women with a SUD.

• All state Medicaid programs to not terminate a juvenile’s medical assistance eligibility because the juvenile is incarcerated.

• HHS to issue guidance on state options for federal reimbursement under Medicaid for services and treatment of SUDs through telehealth, including in school-based health centers. The guidance must be issued within one year of legislation enactment. The Government Accountability Office must evaluate children’s access to servers and treat for SUDs under Medicaid through telehealth.

Stephanie Kennan is a senior vice president at McGuireWoods Consulting, where she spearheads health care policy services for clients.



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