2024 Telemental Health Developments: Balancing Flexibility and Quality of Care, Navigating Enforcement

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

Washington, DC – November 14, 2024 – Epstein Becker Green (EBG) today released its 2024 updates to the Telemental Health Laws survey. The 2024 updates illustrate the continued 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 tracked and analyzed telemental health laws and trends since 2016, making 2024 the ninth installment of the annual survey.

During the 118th Congress, federal legislators from both parties and across both chambers of Congress introduced over 60 bills addressing various temporary and long-term federal-level legislative proposals related to telehealth.

Given the notable appetite for regulation and enforcement in the telemental health space, providers should prioritize regulatory compliance as the industry looks ahead to 2025.

“We have observed a period of adjustment in this post-public health emergency (PHE) environment, with many states and professional licensing boards taking steps to modify their existing laws, regulations, and guidance,” explained Amy Lerman, a Member of the Firm in EBG’s Health Care and Life Sciences practice. “Complicated further by a patchwork of federal telehealth flexibilities potentially ending in 2025, it is even more essential that stakeholders continue to monitor for changes in the application of telemental health care.”

Below are more details on recent industry progress:

The Wait for DEA Rulemaking Continues

Telehealth providers have continued to benefit from an extension of the waiver by the U.S. Drug Enforcement Administration (DEA) regarding the remote prescribing of controlled substances.

• A final rule sent to the White House Office of Management and Budget for review in October 2024 suggests that the DEA intends to issue another extension.
• However, a new presidential administration may seek to make new changes to the DEA’s forthcoming proposal, which could further delay the codification of permanent remote prescribing policies by the DEA.

Telefraud and Enforcement

As has been the case in previous years, efforts have continued in 2024 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 2024, the DOJ announced the agency’s latest takedown, which resulted in criminal charges against 193 defendants for alleged participation in health care fraud and opioid abuse schemes, resulting in more than $2.75 billion in intended losses and $1.6 billion in actual losses.
• As of November 2024, 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, 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.

2024 Trends

Though no two states approach the regulation of telehealth in the same manner, we have discerned some trends among the states in 2024. 

• Development of Telehealth Practitioner-Patient Relationship Standards: Efforts are underway to establish specific regulations for various health care providers beyond physicians to form valid practitioner-patient relationships via telehealth. For example, Kentucky’s S.B. 255 outlines standards for social workers using telehealth.
• Interstate Compacts and Cross-State Practice: Many states continue to leverage interstate compacts to facilitate cross-state practice for health care professionals, especially in the mental and behavioral health sectors. This approach allows professionals with valid licenses in their home states to practice in other states, addressing the challenges of supporting patients who travel or reside temporarily out of state.
• Exceptions and Revisions to Professional Licensure Requirements: States are creating exceptions to licensure requirements to accommodate cross-state practices. Notable examples include Colorado's bill for out-of-state providers, South Carolina's telehealth provisions for ongoing specialty care, and Vermont's new telehealth registration and licensure process.

The Telemental Health Laws survey is authored by Amy Lerman, Audrey Davis, and Avery Schumacher, with support from Julianna Dzwierzynski, Chloe Hillard, Spreeha Choudhury, Will Walters, Rachael Grey, Kyla Portnoy, Ada Peters, Annie Lucatuorto, and Jean-Claude Velasquez. The following 2024 EBG Summer Associates provided research and drafting support: Caitlin Carlton, Sara Devaraj, Matthew Mariani, Julie Renfroe, and Julia Thayer.

Download Epstein Becker Green’s Telemental Health Laws App

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.