Epstein Becker Green Finds Telehealth Services Are Increasingly Accessible to Mental Health Professionals Despite Legislative Barriers

Firm’s Telemental Health Laws App Analyzes Regulatory Requirements for Mental Health and Behavioral Health Practitioners

WASHINGTON, DC – October 21, 2019 – Federal and state lawmakers increasingly support coverage for mental health services provided via telemedicine, according to Epstein Becker Green’s 2019 Telemental Health Laws survey (“2019 Survey”).

The survey of state telehealth laws, regulations, and policies within mental health, now in its fourth year, is available as an app for iPhone, iPad, and Android devices. The survey highlights the following milestones achieved in 2019:

• All 50 states and the District of Columbia now provide some level of coverage for telehealth services for their Medicaid members
  • Earlier this year, Massachusetts approved coverage of telehealth services for its 1.9 million Medicaid members seeking access to psychologists, psychiatrists, psychoanalysts, clinical social workers, behavioral health nurses, nurse practitioners, and professional counselors
• Kentucky adopted legislation that went into effect July 1, which allows telehealth visits to take place in a patient’s home, and home-based telemental health also has bipartisan support in Congress in the Mental Health Telemedicine Expansion Act (H.R. 1301), which was reintroduced earlier this year
• Arizona expanded its telehealth law to include coverage of treatment services for substance-abuse disorders

“We are excited to see telehealth services more widely accepted at the state and federal level,” said Amy F. Lerman, a Member of Epstein Becker Green in the Health Care and Life Sciences practice. “Telehealth is a viable and efficient method of care for patients who require quality treatment that may not be close by. It also gives providers an opportunity to share their services and expertise with underserved segments and geographies they couldn’t serve otherwise.”

Doximity, an online networking service for medical professionals found that radiology and psychiatry were the top two specialties most interested in telemedicine opportunities. Mental health services via telemedicine are used in a variety of settings, including private practice, outpatient clinics, hospitals, schools, nursing homes, and correctional facilities.

Barriers Persist

While acceptance of telehealth services continues to grow, obstacles remain that limit participation of providers and patients, according to the 2019 Survey. These barriers include the following:

• State Parity Laws Remain Loose and Ineffective: Telehealth parity laws are intended to ensure the same coverage of services provided in person. Yet the laws themselves are often not very robust, simply stating that telehealth services must be medically necessary (in order to be covered) or that payors should not exclude services solely because they were provided through telehealth.
• Twenty Percent of U.S. States Lack Parity Laws. Telehealth parity laws are currently in effect in 39 states and the District of Columbia. Momentum came to a halt last year, as payers, providers, and legislators in several states could not reach agreements on reimbursement levels.
• Treatment Options Are Limited. The Ryan Haight Online Pharmacy Consumer Protection Act of 2008 prohibits remote prescribing of controlled substances (except under very restricted exemptions) unless an in-person examination between the prescribing physician and the patient has taken place

Progress to Continue Into 2020

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 telehealth services. Providers should continue to monitor developments in federal and state laws, regulations, and policies to capitalize on telehealth opportunities while maintaining compliance with applicable laws.

Areas for opportunity and expansion include: 

• State professional licensure boards beyond state Boards of Medicine expanding access to telehealth services
• Medicare reimbursement for telehealth services to treat opioid use disorder
• DEA regulations that would allow for the long-awaited “special telemedicine registration,” which would enable physicians to prescribe controlled substances without conducting a prior in-person examination first, to become a reality

The survey is co-authored by Amy Lerman and Francesca R. Ozinal. In addition to Ms. Lerman and Ms. Ozinal, Epstein Becker Green attorneys, Audrey Davis, Priya Kaulich, Matthew Sprankle, James S. Tam, and Sidra S. Galvin; Epstein Becker Green Law Clerk – Admission Pending Brian Hedgeman; and Epstein Becker Green Summer Associates Vidaur Durazo, Devon Minnick, Lauren Petrin, Olivia K. Plinio, and Christopher Taylor contributed to the 2019 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.