Epstein Becker Green Finds Increasing Acceptance of Telehealth Services Among Providers and Legislators

Survey Results Reveal That Bipartisanship and the Current Opioid Epidemic Contribute to the Adoption of Telehealth and Telemental Health Services

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Washington, DC (December 11, 2018) – Epstein Becker Green (“EBG”) today released its 2018 Telemental Health Laws survey (“2018 Survey”) in app form, its latest and most comprehensive and convenient update to state telehealth laws, regulations, and policies for mental and behavioral health practitioners and stakeholders across all 50 states and the District of Columbia. The 2018 data is an update to the firm’s original 50-State Survey of Telemental/Telebehavioral Health (“2016 Survey”) and its 2017 appendix.

Since EBG’s release of the 2016 Survey, the public’s and the health care industry’s recognition of the benefits of telehealth has continually increased. While the shortage of behavioral health providers has long been acknowledged, the use of telehealth technologies, including practice management systems and online patient portals, to provide greater access to behavioral health professionals has increasingly gained traction and continues to gain validation as an alternative model of care delivery.

Through efforts to compile the 2018 Survey, EBG also found that current events and issues, such as the opioid epidemic, have put more pressure than ever before on federal and state legislators to pass laws that promote access to, and provide guidance for, providers seeking to utilize telehealth services. These efforts will help to expand access to needed behavioral health treatment.

“Telehealth is a proactive solution for patients who need quality care from health care providers who may not be located close by or require real-time or after-hours care,” explained Amy Lerman, who spearheaded the survey for the third year and is a Member of EBG in the Health Care and Life Sciences practice. “As access to this method of care expands, it also opens the door for various subsets of medicine, including behavioral and telemental health. We are excited to find that it is still evolving, growing, and improving Americans’ quality of life, and we will continue to keep a pulse on the industry to ensure that we capitalize on telehealth opportunities while maintaining compliance with applicable laws.”

Three Drivers of Telehealth Expansion

The 2018 Survey, which is also available for the first time, without charge, as an app for iPhone, iPad, and Android devices, describes the following reasons for the increase of access to telemental health services, and telehealth services overall:

• Bipartisan Support: The Bipartisan Budget Act of 2018 signed into law in February expanded Medicare coverage for certain telehealth services to beneficiaries who are being treated by practitioners participating in accountable care organizations (“ACOs”).
• Greater Advocacy from Medicare & Medicaid: In June 2018, the Centers for Medicare & Medicaid Services publicly encouraged states to utilize telemedicine and telepsychiatry to facilitate coordinated care for Medicaid recipients.
  • As of August 2018, 49 states and the District of Columbia provide reimbursement for live video telehealth services through Medicaid fee-for-service programs.  Massachusetts is the only state not yet participating.
• The Opioid Epidemic: Several states, including Indiana, Michigan, and Missouri, have introduced and/or passed legislation that expands remote prescribing of controlled substances for treatment of substance use disorders (“SUDs”).
  • Since EBG’s last analysis, Indiana has passed legislation expanding the list of controlled medications that practitioners may prescribe via telehealth platforms, some of which can be used to treat opioid abuse and dependence.
  • In October 2018, President Trump signed into law H.R. 6, the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment (“SUPPORT”) for Patients and Communities Act.

Expanding Access to Telehealth and Telemental Health Services

The 2018 Survey also details the following positive trends in telehealth adoption and usage models, including:

• School Sites and Pediatric Care: Telehealth utilization through state Medicaid programs has expanded to allow recipients greater access, especially in schools. New York has expanded the list of state-sanctioned care delivery sites for telehealth to public, private, and charter elementary and secondary schools, and granted children virtual access to mental health counselors.
• Department of Veterans Affairs (“VA”): The VA has significantly expanded its telehealth-focused programs and is now mandated by Congress to provide veterans with a self-scheduling, online appointment system, whether in person or via telehealth technologies. Since its rollout, the VA’s telehealth program has onboarded approximately 20,000 new patients and hosts more than 6,000 virtual visits each week.
• Promotion of Care Models for Growing Aging-in-Place Population: Telehealth can facilitate a wide range of diagnostic, therapeutic, and care management services for individuals who are aging, as well as tools and services to support family and community members who care for them.
  • Potential benefits of greater telehealth utilization include reducing the burden and cost of travel and frequency of in-person visits, improving access to care and the care experience while reducing unmet needs for care, reducing unnecessary hospitalizations, and decreasing out-of-pocket costs (fewer hospitalizations, less nursing home care).

Looking Ahead: 2019 Outlook

Despite such continued and significant positive action this year from legislators, there are several barriers and policy variances hindering the adoption of telehealth services that will continue to persist in 2019. These barriers and variances include:

• Limited Federal Guidance on Coverage and Reimbursement: Despite Medicaid’s fewer restrictions on telehealth coverage as compared to its Medicare counterpart, there is limited federal guidance or information regarding the implementation of telehealth services in state Medicaid programs or coverage parameters for states choosing to offer such services. Health care practitioners who treat Medicaid populations are at risk for steep penalties for noncompliance, including fines and the potential loss of their professional licenses.
• Lack of Meaningful Coverage by Third-Party Payors: A range of public and private payors do not provide meaningful coverage and reimbursement requirements for telehealth services.
  • A recent MedPAC survey noted that coverage of telehealth services continues to vary widely across commercial health plans, with most covering only one or two types of telehealth-based services.
  • According to MedPAC, most commercial health plans have had little incentive to offer telehealth services because there has been scant evidence of reduced costs or improved outcomes associated with telehealth services.

While telehealth parity laws are currently in effect in 39 states and the District of Columbia and are intended to ensure the same coverage of (and in some cases, reimbursement for) telehealth services, there is more work ahead to achieve comprehensive coverage and access. States must continue to enact new parity laws or expand existing ones. There are already plans for progress in 2019—for example:

• Arizona will expand its existing parity law to include coverage of SUD treatment services provided through telehealth.
• Kentucky legislation will go into effect on July 1, 2019, that requires commercial health plans to reimburse psychologists, therapists, and other non-physician providers for telehealth visits.
• States including Alaska, Michigan, and Utah are amending their parity laws to expand or modify their applicability to additional specialties or types of providers.

“I am expecting to see fast and growing adoption of telehealth within government managed care programs (Medicare Advantage, Medicaid Managed Care, and Medicare ACOs) in 2019 and beyond,” said Ross Friedberg, General Counsel of Doctor on Demand. “For health plans and health care provider organizations offering telemental services across states, EBG's survey is a must-have resource.  Although telehealth technologies remove geographical barriers to care, health care remains a locally regulated industry.  Successfully navigating these differences in the law from state-to-state is critical to the success of any telehealth program.”

In addition to Ms. Lerman, EBG attorneys Daniel Kim, Francesca Ozinal, and James Tam; EBG Law Clerks – Admission Pending Audrey Davis and Matthew Sprankle; and EBG Summer Associates Alexis Boaz, Emily Budicin, Ashley Creech, and Bailey Wendzel contributed to the 2018 Survey.

About Epstein Becker Green

Epstein Becker & Green, P.C., is a national law firm with a primary focus on health care and life sciences; employment, labor, and workforce management; and litigation and business disputes. Founded in 1973 as an industry-focused firm, Epstein Becker Green has decades of experience serving clients in health care, financial services, retail, hospitality, and technology, among other industries, representing entities from startups to Fortune 100 companies. Operating in locations throughout the United States and supporting domestic and multinational clients, the firm’s attorneys are committed to uncompromising client service and legal excellence.  For more information, visit www.ebglaw.com.