Healthcare Law Blog

Medication-Assisted Therapies, Behavioral Health Services Organizations and Issues Facing Behavioral Health Providers, Part Two

This is part two of this article of a two-part article. Part one was posted on Tuesday.

In addition to regulations regarding buprenorphine, the General Assembly passed a new law to bolster the ability of behavioral health providers to provide substance abuse disorder services and receive Medicaid reimbursement for them.. Senate Bill 192, recently signed into law by Governor Beshear, includes myriad provisions for fighting the state’s heroin scourge. One section in particular provides for Medicaid credentialing of behavioral health providers that provide substance abuse disorder services. SB192 also includes a clause that requires DMS to provide expanded Medicaid coverage to include “a broad array of treatment options for those with heroin addiction and other substance use disorders.” To meet the requirements of the ACA that state Medicaid programs cover behavioral health and substance disorder problems, the Cabinet for Health and Family Services has enacted new regulations that create new types of providers of these services and licenses as well as expanding Medicaid participation for these new provider types. The most comprehensive of the new providers is the Behavioral Health Services Organization (“BHSO”), which is authorized to provide a comprehensive array of mental health and substance abuse disorder services. Under a BHSO license, this provider may offer the gamut of services including residential and outpatient services as well as physician services for medically assisted treatment of addiction, which may include both buprenorphine treatments and the extended release injectable Vivitrol. While providers scramble to form BHSOs and related entities, DMS is struggling to address reimbursement issues. The new law also specifically exempts residential substance use disorder treatment programs from certificate of need requirements thereby eliminating an expensive regulatory hurdle for implementation and encouraging new facilities. When DMS promulgates the necessary regulations to expand Medicaid coverage, behavioral health physicians that treat substance abuse disorders may finally see the recognition of the growing need for these types of new and innovative therapies to combat drug addiction.

Many hurdles for physicians that provide medication assisted treatments remain, however. For example, the current Medicaid fee schedule payment for substance abuse services still only pays $21.53 for physician visit. Compare this to the enhanced rate for administering a flu vaccine - currently $15.30 - for a more complete understanding of the inadequate reimbursement rate for buprenorphine therapy in particular, a therapy that requires special DEA registration, the development of protocols, extensive examination and documentation of a patient’s history of addiction, and administrative burdens. Federal law limits the number of patients a single physician can treat with buprenorphine as well, starting at 30 in the first year and maximum of 100 thereafter.[1]

Physicians were once able to set up a separate, non-Medicaid practice to treat patients directly in a cash-only transaction; recent changes to Medicaid’s regulations have abolished this practice.[2] Any Medicaid participating physician who sees a Medicaid recipient for a Medicaid-covered service must charge Medicaid for the service, regardless of whether the services are performed for another company or at another location that is not enrolled in Medicaid. Physicians working to meet the standards and specifications in the regulations, with all attendant infrastructure necessary to implement the specific timelines and standards of administration of this medication-assisted therapy, may not be able to survive in a private practice dedicated solely to prescribing buprenorphine at such low reimbursement rates.

Kentucky is working toward providing the services necessary for rehabilitation of addicted individuals through reformation and expansion of the existing system of addiction treatment providers. While the state has not yet placed the same burdens on Suboxone that it has on oxycodone and hydrocodone, it is signaling to providers that to keep this tool in their tool box, they must meet much more rigorous criteria. Regardless of which treatment methodology they utilize, providers and physicians must be paid at rates that encourage participation, not withdrawal, for Kentucky to be successful.

Lisa English Hinkle is a Member of McBrayer law. Ms. Hinkle chairs the healthcare law practice and is located in the firm’s Lexington office. Contact Ms. Hinkle at lhinkle@mcbrayerfirm.com or (859) 231-8780, ext. 1256, or reach out to any of the attorneys at McBrayer.

Services may be performed by others.

This article does not constitute legal advice.

[1] Drug Abuse Treatment Act of 2000, Title XXXV, Section 3502 of the Children’s Health Act of 2000 (Pub.L. 106-310, 114 Stat.1101, enacted October 17, 2000)

[2] 907 KAR 3:005