Tackling Another Public Health Emergency: Recent State and Federal Policies to Increase Opioid Use Disorder Treatment Access

By Rachel Swindle and Kristen Ukeomah*

While the federal COVID-19 Public Health Emergency (PHE) ended in May, the U.S. Secretary of Health and Human Services (HHS) recently renewed the PHE declaration for the opioid crisis and the Biden administration announced new proposed rules with the goal of improving access to treatment. Overdose deaths—the majority of which are due to opioids—remain alarmingly high, and the reported number of synthetic opioid overdose deaths has continued to increase over the past year. Policymakers have explored a variety of approaches to curb this crisis and expand access to evidence-based treatment for people with opioid use disorder (OUD). Decades of medical research shows that FDA-approved medications for OUD (MOUD**), such as buprenorphine and methadone, are the most effective treatment options. Last year, CHIRblog detailed some of the private insurance-related barriers to medications used to treat opioid use disorder, as well as federal and state initiatives to ameliorate access issues. This blog expands and updates that information, highlighting recent federal and state-level policy developments that aim to remove some of the obstacles to this life-saving treatment for people with OUD.

Recent Federal Policy Changes and Proposals Aim to Improve MOUD Access

Proposed Improvements to Federal Parity Law Enforcement

Most recently, the Biden administration proposed new regulations under the Mental Health Parity and Addiction Equity Act (MHPAEA) of 2008. The law requires parity between mental health and substance use disorder (MH/SUD) benefits and medical/surgical benefits, including parity in treatment limits, utilization management techniques, and cost-sharing requirements between MH/SUD-related care and medical/surgical care. But many insurers have failed to comply with the parity requirements, and enforcement is challenging and inconsistent. The new proposed rule would require health plans to collect data and conduct comparative analyses on provider networks (the number MH/SUD providers in plan networks and reimbursement rates), prior authorization requests and the outcomes of those requests, and other treatment limits imposed on MH/SUD benefits. Those reports would be made available to federal regulators, which will improve the ability of regulators to ensure compliance with the law’s parity requirements–an important step for patients to have meaningful access to OUD treatment.

Health Insurer Provider Networks

An insufficient supply of MOUD providers, particularly in-network providers, continues to complicate or preclude OUD patients’ treatment access. The Centers for Medicare & Medicaid Services (CMS) is hoping to improve treatment access for enrollees on the Affordable Care Act’s Marketplace by adding Substance Use Disorder Treatment Centers as new category of “Essential Community Provider” (ECP) for plan year 2024. Insurers participating in the Marketplace must contract with a minimum 35 percent of ECPs within the plan’s service area, and also make a good faith effort to contract with at least one treatment center in each county in the service area, if available. This policy is expected to expand access to substance use disorder (SUD) treatment, such as MOUD, for the record-large population of Marketplace enrollees.

Increasing the Supply of MOUD Providers

Increasing access to MOUD also requires a sufficient number of providers who can prescribe MOUD. Previously, providers were required by federal law to obtain an “X-waiver” in order to prescribe buprenorphine – one of the most effective medications for treating OUD. In a 2020 report from the U.S. Government Accountability Office, practitioners reported that the time-intensive trainings and administrative hurdles associated with securing an X-waiver discouraged some providers from applying for one. Further, once the waiver was obtained those providers were subject to strict caps on the number of patients they could treat. The Consolidated Appropriations Act of 2023 eliminated the requirement to obtain this X-waiver as well as the patient caps, increasing the supply of providers who can prescribe MOUD medications and making it easier for insurers to build adequate networks with MOUD providers. While more can be done to educate prospective providers of MOUD, removing the X-waiver opens the door for more providers in new settings (such as primary care) to prescribe this evidence-based treatment.

States Take Action to Lower Insurance-related Barriers to Treatment

In addition to efforts at the federal level, states have taken action to reduce insurance-related barriers to OUD treatment. Several of these state reforms, highlighted below, help illustrate ways in which policymakers in other states could improve patient access to care.

Mandating Coverage of all FDA-approved MOUD

Commercial health plans often do not cover the full spectrum of MOUD options. Several states require health plans to cover at least one of the FDA-approved MOUDs, but the medications are provided in different settings: some providers can prescribe buprenorphine, while methadone is only available at opioid treatment programs (OTPs). Plans that cover only one MOUD leave gaps in OUD patient access, for example, if the plan only covers buprenorphine but enrollees only have access to an OTP. Earlier this summer, Nevada enacted legislation mandating that state-regulated health plans cover all FDA-approved MOUD.

Limits on Cost Sharing

Patients continue to report that out-of-pocket costs hinder their ability to access needed medical care. Those costs can mount quickly for care sought at OTPs (currently, OTPs are the only way to obtain methadone, the medication with the most evidence of efficacy). Patients are required to regularly check in with an in-house counselor and periodically complete drug screenings. Depending on how the OTP bills for services, these visits and lab work can subject patients to out-of-pocket costs on top of their cost sharing for the medication itself. States have tackled cost-sharing barriers in different ways. Since 2017, Massachusetts’s ACA Marketplace has required insurers offering ConnectorCare products (subsidized coverage available for people with incomes under 300 percent of the federal poverty) to eliminate cost sharing for the medication itself as well as any office visits associated with MOUD treatment. In 2022, New York Governor Hochul signed legislation prohibiting state-regulated plans from charging copayments for OTP visits.

Restrictions on Utilization Management

Insurers often use utilization management techniques to rein in costs by reducing health care consumption and preventing the use of inappropriate treatments. One such technique is the requirement that providers obtain authorization from the patient’s insurer before treating or prescribing certain kinds of care. These “prior authorization” requirements can cause significantly delayed or even forgone care. For OUD patients, time spent waiting on prior authorizations can be deadly due to the risk of overdose. In a recent report summarizing data submitted by private health insurers with at least 1% of the market share in the individual, small- and large-group markets, Washington’s Office of the Insurance Commissioner found that prior authorization requests for mental health and substance use disorder treatment were approved at lower rates compared to medical/surgical requests, and that the response wait time for MH/SUD codes is more than twice that of medical/surgical codes—45.4 hours compared to 20.3 hours, respectively.

Some states have adopted policies to reduce the burden of prior authorization requirements for patients. Since 2020, insurers in Colorado have been prohibited from using prior authorization for FDA-approved medications to treat SUD if that medication is included in the plan’s formulary for the treatment of OUD. Other states can go further. Minnesota recently enacted a law requiring the state’s Formulary Committee for the state’s Medicaid program to ensure at least one form of methadone be made available without prior authorization. Though the committee’s purview extends only to Medicaid—a study last year found that half of Medicaid beneficiaries were subjected to prior authorization for MOUD—this policy could be replicated for the state-regulated private market.

Prior authorization is not the only utilization management technique that can impede care access. Newly enacted legislation in Vermont prohibits state-regulated insurers from imposing “step therapy” requirements on enrollees with MOUD prescriptions, a process where patients must try an alternate medication for their condition before they can proceed with the originally prescribed course of treatment.

Bolstering Provider Networks and Increasing the Number of Providers for MOUD

Patients seeking treatment for OUD can be stymied by an inadequate supply of providers and a lack of in-network providers under their insurance plan. Congress’s elimination of the X-waiver was an important step, but some states have tried to tackle the issue in other ways. Colorado imposed new requirements that insurers annually report to the state’s Department of Insurance (DOI) on enrollees’ MOUD provider access, including the number of in-network providers of MOUD and the company’s initiatives to “ensure sufficient capacity for and access to [MOUD].” The DOI has received the first year of carrier data from these reports and is analyzing the findings. Some states have sought to improve OUD treatment access by expanding the universe of providers who can prescribe MOUD. For example, by January 2024 Nevada will newly allow pharmacists to prescribe medications to treat OUD (and the Consolidated Appropriations Act of 2023 ensures that these pharmacists will not face the additional burden of the requirements of the X-waiver). This provides people with OUD another point of access to initiate treatment and expands the pool of providers available to prescribe MOUD.

Conclusion

The U.S. opioid crisis continues unabated. Insurance coverage significantly expands access to health care, but in addition to stigma, logistical barriers, and patient demographics, insurers’ benefit design, provider shortages, and insurer-provider contracting practices can make it difficult or impossible for patients with OUD to obtain care. Federal and state policymakers are implementing reforms that expand access to lifesaving care for patients with OUD—an important step to alleviating and eventually ending the opioid crisis.

* Kristen Ukeomah supports research on the Sustainability of Opioid Settlement Funds funded by the Elevance Health Foundation at the Duke-Margolis Center for Health Policy.

**Author’s note: In prior CHIRblog posts, the term medication-assisted treatment (MAT) is used frequently. In recent years there has been a shift towards using the term MOUD (“medications for opioid use disorder”) instead of MAT. This change is part of broader efforts by clinicians, advocates, and policymakers to reduce stigma associated with MOUD and focus on the medication itself as the key to treatment. More information is available here and here.