2022 Telemental Health Regulations Unlock Access and Evolve Compliance Practices

As State Legislatures and the U.S. Congress Tackle the Mental Health Crisis, Epstein Becker Green’s Seventh Annual Survey Highlights the Continued Expansion of Regulations Promoting Telehealth Services

Washington, DC – November 15, 2022 – Epstein Becker Green (EBG) today released its 2022 updates to the Telemental Health Laws survey. 

The 2022 updates report a significant evolution of the telemental health and telehealth industries, including increased regulatory flexibilities that promote increased use of telehealth. The survey’s complete findings are available for download via an app. See also the executive summary of this year’s findings.

The survey’s focus on behavioral health professions highlights an ongoing mental health crisis and an industry in dire need of qualified mental health services and resources. In 2022, reports of a 25 percent increase in the global prevalence of anxiety and depression pushed the Biden administration to prioritize access to mental health services, including the $1.5 trillion Consolidated Appropriations Act of 2022, which extended Medicare coverage related to telemedicine practices. As a result, mental health care services multiplied as state and local legislatures expanded policies to support the provision and coverage of these services.

As within many areas of health care, however, expansion and innovation contributed to a higher risk of fraud and resulted in an increase in enforcement activity. Telemental health providers were not immune to this activity in 2022, and providers should prioritize regulatory compliance as the industry looks ahead to 2023.

“As legislators began to address regulations heavily impacted by COVID-19, the United States also faced the demand for more accessible mental health services,” explained Amy Lerman, a Member of the Firm in EBG’s Health Care and Life Sciences practice. “The heightened importance of telemental health services calls for more flexibility and expanded access. That call was answered in 2022, and now the industry must ensure that services maintain quality and compliance for real change to occur.”

Below are more details on industry progress:

Telemental Health Becomes More Accessible Across States

While physicians continue to use telemedicine and telehealth services in their practices, 2022 brought continued regulatory updates in many states that promote flexibility and access to telehealth technology for use by other mental and behavioral health professionals, such as psychologists, social workers, and counselors. These are some measures of increased accessibility in 2022:

• Broader Coverage Under State Medicaid Programs: While all state Medicaid programs provide coverage and reimbursement for some telehealth services, a key development was certain state Medicaid programs making permanent the temporary COVID-19 flexibilities in coverage and reimbursement, to promote coverage of telehealth services. For example, some states’ Medicaid programs now provide coverage for certain services supplied through audio-only modalities. 
• Interstate Practice: States have continued to evolve with respect to how professionals can fulfill professional licensure requirements. In certain states, specific types of providers may provide services to patients in the states as long as they hold a license in good standing in their home state. Greater state participation in various professional compacts also has helped facilitate cross-state practice activities.
• Remote Prescribing: States continue to clarify and refine requirements under which physicians and certain other professionals can prescribe remotely, specifically by eliminating the requirement that the provider conduct a prior in-person examination and allowing instead for the necessary examination to occur via telehealth.

Instances of “Telefraud” Met with Continued Enforcement

As telemental health services have seen unprecedented demand, states and federal lawmakers are addressing the increased risk of fraudulent schemes. In 2022, the U.S. Department of Justice (DOJ) and the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) continued to build on previous activity. Notable actions and reporting include the following:

• The DOJ issued criminal charges against 36 defendants in 13 federal districts across the United States for more than $1.2 billion in alleged fraudulent schemes, many involving telehealth services.
• The OIG published a July 2022 Special Fraud Alert regarding arrangements with telemedicine companies. The alert sets forth seven characteristics that suggest arrangements with a heightened risk of fraud and abuse while following dozens of investigations involving companies that claimed to provide telehealth, telemedicine, or telemarketing services. 
• A September 2022 OIG data brief on integrity risk in Medicare telehealth billing examined 742,000 providers who billed Medicare fee-for-service and Medicare Advantage at the onset of the COVID-19 pandemic. As part of its conclusions in the data brief, OIG established seven measures to identify providers who are at high risk for improper Medicare telehealth billing.

2023 Outlook

As the telemental health services industry continues to expand, federal and state legislators must decide which of the flexibilities granted in response to the COVID-19 pandemic should become permanent. In 2023, it will remain critical for telehealth providers to monitor developments in federal and state laws, regulations, and policies while making investments in compliance. Here are some key areas on which providers should focus:

• Coding and billing for telehealth services: The OIG’s recent data brief provides a useful roadmap that should inspire stakeholders to take a closer look at internal coding, billing, auditing, and monitoring practices, which serve as important checks and balances to help ensure compliant behavior.
• Continued focus on compliance: Beyond OIG’s data brief, providers are on notice regarding a variety of compliance considerations, such as prescribing activity, HIPAA compliance, and patient consent. Laws in each of these areas continue to evolve, and providers must keep up with changes. Constructing and operationalizing a compliance infrastructure that can manage these changes (e.g., policies and procedures, education, and training) is no longer a “nice to have” but rather a “must have.”

The Telemental Health Laws survey is authored by Amy Lerman and Audrey Davis, with support from Jenna Dees, Erin Sutton, Christopher Taylor, and Bailey Wendzel. EBG Law Clerk Jack Ferdman and the following 2022 EBG Summer Associates provided research and drafting support: Nija Chappel, Madeline Dwivedi, Annie Lucatuorto, Diego Perea, Ada Peters, and Kyla Portnoy.

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.