This article was originally published in the Union Leader and can be found here.
NH Legal Perspective: Telemedicine can Assist in the Treatment of Substance Use Disorders
By: Andrew Eills
February 22, 2020
Everyone is familiar with the timeworn complaint, “We can put a man on the moon, but we can’t (fill in the blank).”
When it comes to the fight against the opioid epidemic, “We can put a man on the moon, but we can’t use the full power of telemedicine to treat substance use disorders.” Now, however, a number of bills working their way through the Legislature may cure this problem.
Telemedicine offers physicians the ability to treat patients remotely, using a digital connection. New Hampshire law defines it as “the use of audio, video, or other electronic media for the purpose of diagnosis, consultation, or treatment.”
Telemedicine doesn’t include a simple phone call or fax. As our population’s comfort level with technology increases, and the internet becomes more accessible, telemedicine will increasingly connect doctors and nurse practitioners to patients, especially those in rural or underserved areas. According to Doximity Research, since 2015 the number of physicians who have self-reported telemedicine as a skill has doubled, increasing 20 percent year over year.
In 2018, approximately 7 million patients in the U.S. used some sort of telemedicine service. Telemedicine physician specialties include internal medicine, radiology, psychiatry and family medicine, among others. Because it offers access to specialists and, depending upon the medical issue, presents convenient evaluation and treatment, the adoption of telemedicine is rapidly proceeding.
While New Hampshire law permits some use of telehealth to treat those seeking recovery from substance use disorders, the options have been limited. This is due, in part, to the classification of drugs used to treat addiction, such as buprenorphine (aka Suboxone) which is a “controlled drug.” Controlled drugs are regulated by the U.S. Drug Enforcement Administration and can cause physical and mental dependence. These drugs often are employed in medication-assisted treatment. As of now, it is illegal under New Hampshire law to prescribe a controlled drug via telemedicine.
This barrier hampers addiction treatment because many in need are either in correctional facilities, state designated mental health centers, or receive treatment in one of the 11 “Doorways”, the statewide points of entry for the delivery of substance abuse services. In addition, current law prevents physicians, whose patients are in recovery at home, from prescribing medication for substance use disorders through telemedicine, even after the patient and the physician have established an in-person, face-to-face relationship. For these reasons, access to treatment is curtailed.
With this background, it is not surprising that in this legislative session, members of both the Senate and the House have taken a bipartisan approach to tackling this issue, and have introduced proposed legislation to expand the opportunities for medication-assisted treatment using telemedicine. Senate Bill 467, sponsored by Sens. Kahn, Fuller-Clark, Gray and Bradley, among others, seeks to clarify that controlled drugs (with the exception of methadone) may only be prescribed by telemedicine for use in medication-assisted treatment. House Bill 1623, sponsored by Reps. Marsh, Allard and others, also clarifies how controlled drugs may be prescribed through telemedicine.
The impetus for this proposed legislation is threefold. First, as a result of technological improvement and the formation of networks of providers specializing in substance use disorder treatment, medical researchers have determined that its treatment can be safely conducted through telemedicine.
Second, federal law has been revised to permit certain practitioners to prescribe controlled drugs without first conducting an in-person exam.
Third, recent court decisions require an increase in such treatment in correctional facilities.
Under current New Hampshire law, a significant barrier to treatment is that prior to medication-assisted treatment, a qualified practitioner and patient must establish an initial “in-person, face-to-face” physician-patient relationship. This requirement makes sense for those patients who can visit their doctors’ offices to commence treatment plans. These patients, after an initial face-to-face examination with a qualified physician, often are able to continue treatment at home and their physicians should be able to use telemedicine to prescribe controlled drugs for their ongoing treatment.
But the “in-person” evaluation requirement doesn’t help addicts in prison, VA hospitals, or community mental health centers who have less ability to obtain an initial in-person encounter with a specialist substance use disorder provider registered under federal law to prescribe controlled drugs. For this large cohort of the addicted population, face-to-face encounters are difficult for the patient and the practitioner alike.
As it is currently written, HB 1623 clarifies that practitioners need not establish an in-person relationship prior to treating these patients through telemedicine. Because many within this population also are eligible for Medicaid, HB 1623 expands Medicaid coverage of telehealth services for substance use disorder services using telemedicine.
These proposed bills reflect the strong efforts of the Legislature to tackle the opioid crisis.