United States: Understanding The Implications Of Federal Remote Prescribing Laws On Telemedicine's Role In Behavioral Health Treatment

I. Introduction

The urgency of increasing access to mental health care and behavioral health treatment cannot be overstated. Access to these services has begun to increase slightly within recent years, sparked by an increased discussion about mental health, and the continued removal of the stigma surrounding mental health treatment. While the discussion at least provided a boost in visibility of the need to improve mental health treatment access, the opioid epidemic is now making the country acutely aware of the horrors of substance abuse disorders and the limited means of treating the individuals suffering from addiction. It is no coincidence that the places hit hardest by opioid addiction are also those with limited access to mental and behavioral health providers: rural America.

Rural regions in the United States are those with some of the lowest populations of psychiatric providers and addiction treatment counselors, but with some of the highest prevalence of opioid and alcohol addiction. Opioid and alcohol addiction have a high comorbidity with other mental health disorders, such as depression and anxiety. The combination has proven to overwhelmingly impact rural communities, with few options for treatment in the surrounding area.

However, telemedicine offers a viable solution to provider shortages, particularly with an eye towards mental health- care professionals. Telemedicine alone will not remedy the shortage of psychiatrists in the United States, but the technology does possess the capability of greatly increasing access to them. However, although there is not a substantial barrier to increasing access to therapy through telemedicine, a large driver of psychiatric care is provided through pharmaceutical treatments. The ability for providers to prescribe pharmaceuticals, particularly controlled substances, to patients the provider has not seen in person is limited by the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 ("Haight Act"). The Haight Act was enacted on Oct. 15, 2008 and was effective April 13, 2009. (The DEA issued interim final regulations on April 6, 2009, effective April 13, 2009.) The term "internet" is sufficiently broad under the Haight Act that it would be implicated under any fact pattern involving remote encounters between health-care providers and patients who are using telemedicine technologies.

The relevance of the Haight Act, a law that went into effect almost nine years ago, has been revitalized, but the opioid epidemic and advances in psychiatric treatment are now demonstrating the law requires clarification through amendment to improve access to pharmaceutical treatments and, in turn, increase access to mental health care.

II. Use of Telemedicine to Address Certain Key Issues

A. What Is Telemedicine?

"Telemedicine" is defined as "the use of medical information exchanged from one site to another via electronic communications to improve a patient's clinical health status." Telemedicine is not a separate medical specialty, but rather a tool in the delivery of care. Telemedicine includes three broad categories of technologies for the provision of patient care: 1) "Interactive Services," which refers to real time interaction between physician and patient, via phone, video chat or text for diagnosis, consultation, treatment, education and care management; 2) "Remote Patient Monitoring" captures the use of devices to remotely collect and send data to medical professionals for interpretation; 3) "Store-and-forward" refers to the collection and transmission of medical data, such as images, to a medical professional for assessment.

B. What Issues can Telemedicine Help to Address?

The U.S. is set to face a widespread shortage of physicians across specialties at a time when demand is continually rising. The lack of primary care physicians has been the center of discussion for years in the move to clinically integrated medicine, but the overall shortage is likely to particularly impact geriatric populations at the US population is aging. Recent political developments are likely to further complicate physician supply.

Nearly 20% of Americans live in rural areas, but only 9% of physicians practice in rural settings. With such a shortage, nearly a fifth of the country must travel a substantial distance to get the care they need. Telemedicine offers nearly on- demand access to physicians, providing convenience and access to needed care. The technology is continuously being recognized for its ability to mitigate the shortage of providers in rural health markets, particularly within the field of primary care.

However, telemedicine's benefits may yet be best applied within the mental and behavioral health field. Psychiatrists are one of the most in-demand specialists in the country, and their shortage is likely to only increase with infrequent matches into residency programs. Psychologist prescribing laws remain scattered, with no consensus on how to proceed with giving various mental health providers access to prescribing psychiatric medications. Rural areas particularly suffer from the shortage of psychiatric providers, further increasing both non-reporting of mental health issues, and the lack of treatment.

The shortage in psychiatric providers in rural areas has only further complicated the resolution of the opioid epidemic sweeping the United States. Rural areas are amongst the hardest hit by opioid addiction. The aforementioned lack of providers makes it extremely difficult for those suffering from addiction to receive addiction treatment and counseling. When considering the comorbidity between mental illness and substance abuse disorders, this leaves rural areas particularly exposed to the challenges faced by the shortage of psychiatrists.

Telemedicine could play a substantial role in solving the shortage in mental health practitioners. Telemedicine offers the opportunity to pair the pool of psychiatrists in urban areas with individuals in need of treatment in rural areas. However, providing access to cognitive behavioral therapy may not be enough for those suffering from common mental health conditions such as bipolar disorder, general depression, and Generalized Anxiety Disorder. The need for pharmaceutical treatment is a foregone conclusion in cases as severe as schizophrenia and as common as attention deficit disorder, and prescription drugs are frequently a key component in the treatment of opioid addiction. Thus, the ability for telemedicine to be most beneficial as a tool and resource for the communities it is designed to help is dependent on the ability of a provider to remotely prescribe pharmaceuticals. However, the ability to remotely prescribe is limited at both the state and Federal level.

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Originally published in Bloomberg BNA

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