Epstein Becker Green Releases Updated Analysis of State Laws and Regulations Impacting Scope and Availability of Telehealth Services

Research shows increased adoption and expansion of telemental, telebehavioral, and telepsychiatry services

Washington, DC (October 17, 2017) – Epstein Becker Green (EBG) today released an Appendix to its “50-State Survey of Telemental/Telebehavioral Health (2016)” with new and updated analysis on the laws, regulations and regulatory policies affecting the practice of telemental/telebehavioral health in all 50 states and the District of Columbia. Since the Survey was released in 2016, states have been incredibly active in their legislative efforts with respect to the provision of telehealth services. As a result, EBG again conducted extensive research to share relevant changes with providers and consumers who are navigating this complex legal and regulatory landscape.

Over the last 12 months, most states have demonstrated a willingness to expand the scope of the telehealth services physicians and other behavioral health professionals can provide, in turn making it easier for patients seeking these services to access care.

Some of the effects of the expansion include the following:

• The Centers for Medicare & Medicaid Services reported a 28 percent increase in Medicare payments for telehealth services.
• The Interstate Medical Licensure Compact, which began issuing Letters of Qualification in April 2017, encourages states to put in place regulatory frameworks that will facilitate and increase the interstate delivery of telehealth services. Presently, the Compact is effective in 22 states.
• States like Arkansas, Hawaii and Maine established regulations allowing physician-patient evaluations to be conducted via real-time audio and visual telemedicine technologies.
• Thirty-one states and the District of Columbia enacted telehealth private payer laws.
• In New Jersey, a newly enacted telemedicine law broadly defines “health care provider”, allowing for greater utilization of telehealth modalities by a variety of providers.

According to a report from the U.S. Department of Health and Human Services, an estimated 61 percent of health care institutions use some form of telehealth, and between 40 and 50 percent of all hospitals in the United States employ some form of telehealth.

“Telehealth is a mainstream and viable solution for health care providers, physicians and employers. As states continue to support and expand the exciting benefits telehealth technologies and services offer, our legislators, health care systems and regulatory bodies must work together to navigate the numerous legal and regulatory issues that come with it,” said Amy Lerman, EBG Member of the Firm in the Health Care and Life Sciences practice in the firm’s Washington, DC, office, who spearheaded the survey and analysis. “Our continued analysis of this environment sheds light on the telehealth industry’s tremendous evolution and our firm is excited to be at the forefront of telehealth expansion.”

In addition to a detailed summary of the changes to relevant state laws, regulations and regulatory policies discussed in the 2016 Survey, the 2017 Appendix notably found:

• Specific to provision of behavioral health services, regulations for physicians (e.g., psychiatrists) are still the most prevalent, but states also have started to expand regulatory frameworks with respect to psychologists and other types of behavioral health providers.
• Several states, like Alaska, are working to remove traditional barriers and regulations related to where telehealth services can take place and how physician-patient relationships can be established.
• States, including Texas, are listening to the key regulatory questions posed by stakeholders regarding issues such as establishing physician-patient relationships and remote prescribing, and in response state regulators are providing more clarity as they establish regulatory frameworks that are sensitive to some of these unique issues for telehealth providers.
• Since EBG’s release of the 2016 Survey, 48 states made substantive changes, actively modifying existing laws or enacting additional laws, to clarify and refine the regulatory framework through which telehealth services are delivered. The exceptions are Connecticut and Massachusetts.
• Some states have started to delve into regulatory parameters for provision of telemental health services with more specificity. New York is noteworthy because among its recently promulgated rules on telemedicine, there are specific provisions regarding telepsychiatry services.

In addition to Ms. Lerman, EBG attorneys Bradley S. Davidsen, Daniel Kim, Francesca R. Ozinal, James S. Tam, and Theresa E. Thompson contributed to the Appendix. This update was also produced with the assistance of EBG’s 2017 Summer Associates Audrey Davis, Lauren Farruggia, Brian Hedgeman and Matthew Sprankle. Click here to download the Appendix.

The 50-State Survey of Telemental/Telebehavioral Health (2016) detailed the rapid growth of telemental health (mental health care delivered via interactive audio or video, computer programs, or mobile applications) and the increasingly complex legal issues associated with this trend.

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.