2023 Telemental Health Regulations Chart New Course in Post-PHE World

Epstein Becker Green’s Eighth Annual Survey Highlights the Continued Adoption of Standards and Increased Enforcement Related to Telehealth Services

Washington, DC – November 9, 2023 – Epstein Becker Green (EBG) today released its 2023 updates to the Telemental Health Laws survey. 

The 2023 updates report a significant evolution of the telemental health and telehealth industries, including extended 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.

EBG has been tracking and analyzing telemental health laws and trends since 2016, making 2023 the eighth installment in the annual survey.

The survey’s focus on the adoption of laws, guidance, and other policies related to the use of telehealth by state professional boards signals states’ appetite for regulation in the space. In addition, the end of the public health emergency (PHE) has prompted states to make certain post-PHE policies permanent while leaving others behind. These two forces combined signify that while states remain committed to supporting the use of telehealth services, regulators are also committed to ensuring these services are provided safely and effectively.

As forecasted in last year’s survey, expansion and innovation have contributed to an expanded focus on telefraud and increased enforcement activity. Telemental health providers were not immune to this activity in 2023, and providers should prioritize regulatory compliance as the industry looks ahead to 2024.

“The end of the PHE puts telehealth providers in the crosshairs of regulators,” explained Amy Lerman, a Member of the Firm in EBG’s Health Care and Life Sciences practice. “Because no two states are exactly alike in their approach to defining and regulating telehealth, it remains important that providers track the evolution of state laws, policies, and other guidance to ensure their operations remain compliant to limit their risk.”

Below are more details on recent industry progress:

States Push Boundaries of Existing Telehealth Policies 

In 2023, a key focus of the states has been addressing questions about how to modify existing regulatory infrastructures sustaining the provision of telehealth services to support the continued use of these services in a post-PHE world.

• Using pandemic flexibilities and waivers as a basis, states continued in 2023 to push toward making certain PHE-era policies and guidance permanent.
• Some states took action by replacing pre-PHE telehealth laws entirely, while other states set forth to create brand new parameters and requirements not previously addressed.

Continued Recognition of the Benefits of Telehealth

In 2023, we observed how state professional boards are taking a closer look at how to regulate certain specific needs and circumstances related to telehealth-based care models.

• States have focused on the use of telephones and other audio-only modalities and the question of whether practitioner-patient relationships established solely via these modalities can be considered “valid” telehealth encounters that meet professional standards of care.
• The year 2023 has seen significant activity by state Medicaid programs—specifically, efforts by the states to expand coverage and reimbursement for the types of telehealth-based modalities, providers, and services that can effectively serve the Medicaid populations in these states.

Telefraud and Enforcement

As was the case throughout 2022, efforts have continued in 2023 by the U.S. Department of Justice (DOJ) and the U.S. Department of Health and Human Services Office of Inspector General (OIG) to identify and prosecute “telefraud” schemes.

• In June 2023, the DOJ announced the agency’s latest takedown that resulted in criminal charges against 78 defendants for alleged participation in health care fraud and opioid abuse schemes resulting in more than $2.5 billion in alleged fraud.
• As of November 2023, current open items in the OIG Work Plan include ongoing work on audits related to the use of telehealth for the provision of opioid-use disorder treatment services and the provision of home health services, as well as examination of claims and other data related to the general use of telehealth services by Medicare Part B beneficiaries and telehealth-related expansion efforts by state Medicaid programs during the PHE.

2023 Trends

With so much variation across states in the legislative and regulatory priorities, it can be difficult to spot the patterns and trends, but some always emerge, and 2023 is no exception in this regard.

• Interstate Compacts: Across many of the health professions, interstate compacts have persisted as the most meaningful approach by states to address challenges associated with professional cross-state practice.
• State Licensure Exceptions: States have exceptions to their professional licensure requirements for specific types of professionals and specific circumstances where cross-state practice may help to support pre-existing relationships between professionals and their existing patients.
• Remote Prescribing Guidance: In 2023, continued activity in states has focused on creating more specific practice standards for remote prescribing. Similarly, states have created remote prescribing policies that are specific to certain types of treatment, such as substance use disorder.

The Telemental Health Laws survey is authored by Amy Lerman, Audrey Davis, and Avery Schumacher, with support from Spreeha Choudhury, Julianna Dzwierzynski, Chloe Hillard, Erin Sutton, Christopher Taylor, Will Walters, and Grace Balian. The following 2023 EBG Summer Associates provided research and drafting support: Bailey Cremeans, Sara Devaraj, Hailey Genaw, Lorrin Melanson, Max Schneider, and Jean-Claude Velasquez.

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.

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