Since 2016, Epstein Becker Green (EBG) has researched, compiled, and analyzed state-specific content relating to the regulatory requirements for professional mental/behavioral health practitioners and stakeholders seeking to provide telehealth-focused services.
We are pleased to release our latest compilation of state telehealth laws, regulations, and policies within the mental/behavioral health practice disciplines.
2022: Continued Recognition of Telehealth Benefits
In 2022, shortages of mental/behavioral health providers in the United States continued to create access-to-care challenges for many Americans. However, there has also been ongoing innovation in, and continued efforts to expand access to, telehealth technologies in an effort to increase patient access to mental/behavioral health providers, including psychiatrists, psychologists, counselors, therapists, and other trained professionals.
Throughout 2022, health care providers have continued to grapple with the implications of COVID-19 on their professional practices, underscoring the importance of ongoing federal and state efforts that increased in 2020, and have continued since then, to help ease the regulatory path to the greater provision of telehealth services. In 2022, we have seen how federal and state governments have continued to support regulatory flexibilities put into place during the height of the pandemic that promoted increased use of telehealth, both as lessons learned and to help lawmakers and regulators decide which temporary changes should be made more permanent.
2022: Continued Focus on Telefraud and Enforcement
The number of platforms delivering health care services has continued to multiply and, as within many areas of health care, with expansion and innovation comes a higher risk of enforcement activity. 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 their successful takedowns of “telefraud” schemes through continued, aggressive enforcement of telehealth laws. Most recently, in July 2022, the DOJ announced 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.
Also in July 2022, OIG published a Special Fraud Alert regarding arrangements with telemedicine companies. The alert sets forth seven characteristics OIG believes could suggest a given arrangement poses a heightened risk of fraud and abuse. The alert follows dozens of civil and criminal investigations into fraud schemes involving companies that claimed to provide telehealth, telemedicine, or telemarketing services, but allegedly engaged in kickbacks and substandard medical practices to generate medically unnecessary orders and prescriptions. Those purported telemedicine companies, OIG stated in the alert, “exploited the growing acceptance and use of telehealth” and present “the potential for considerable harm to Federal health care programs and their beneficiaries.” The alert is a reminder—or for some, likely a wake-up call—that telemedicine companies will be held to the same compliance standards as other providers.
In September 2022, OIG released a data brief on program integrity risk in Medicare telehealth billing during the first year of COVID-19. Based on a review of 742,000 providers who billed Medicare fee-for-service and Medicare Advantage between March 1, 2020, and February 28, 2021, OIG identified seven measures to identify providers who are at high risk for improper Medicare telehealth billing:
- Billing both a telehealth service and a facility fee for most visits
- Billing telehealth services at the highest, most expensive level every time
- Billing telehealth services for a high number of days in a year
- Billing both Medicare fee-for-service and a Medicare Advantage plan for the same service for a high proportion of services
- Billing a high average number of hours of telehealth services per visit
- Billing telehealth services for a high number of beneficiaries
- Billing for a telehealth service and ordering medical equipment for a high proportion of beneficiaries
These enforcement actions and program integrity activities should serve as a warning to the industry that there is a need not only to consider the legal requirements related to providing telehealth services from a policy and operations perspective but also to invest in a robust compliance infrastructure. Coordinated efforts between various federal and state agencies will continue and will highlight the increased scrutiny telehealth providers are facing as the industry expands.
2022 Trends: General Telemental/Telebehavioral Provisions Across the States
As has historically been the trend, a significant majority of the state-level regulatory guidance on telemedicine/telehealth services continues to focus on physician services. However, as we have seen in recent years, other state professional boards have developed comparable parameters and guidance for other types of mental/behavioral health professionals, such as psychologists, social workers, and counselors.
While all states require physicians and other health care professionals to hold valid licenses to practice issued by the state’s relevant professional board, a strong trend throughout 2022 has been more states adopting various interstate compacts that allow specific providers to practice in states they are not licensed in as long as they hold a license in good standing in their home state. EBG’s 2022 Telemental Health Laws update highlights the number of states that have joined one or more of the professional licensure compacts. For example:
- Thirty-seven states, the District of Columbia, and the territory of Guam have joined the Interstate Medical Licensure Compact (for physicians).
- Thirty-seven states, the U.S. Virgin Islands, and Guam have joined the Nurse Licensure Compact (for registered nurses and licensed practical nurses).
- Twenty-six states have joined the Psychology Interjurisdictional Compact (PSYPACT).
- The Advanced Practice Registered Nurse Compact, which goes into effect once seven jurisdictions have enacted the legislation, continues to gain steam.
- To date, 17 states have enacted the Counseling Compact, and the Counseling Compact Commission hopes to begin accepting applications in late 2023 or early 2024.
Another noteworthy development in 2022 has been state legislation expressly allowing certain out-of-state providers to render telehealth services to in-state patients under certain circumstances. States taking action in this regard include Alabama, Illinois, Ohio, and Virginia. Not many states have passed such legislation to date, but these are potential signs of a growing trend.
Another noteworthy trend highlighted in EBG’s 2022 Telemental Health Laws update relates to guidance on remote prescribing practices. Generally and gradually, most states have allowed licensed physicians to prescribe non-controlled substances via telehealth and, over time, states have adjusted their guidance to permit physicians to prescribe remotely without requiring that the physician conduct a prior in-person examination, allowing instead for the necessary examination to occur via telehealth. The year 2022 has seen this trend continue to evolve in states, and for states to continue to adopt specific practice standards for remote prescribing.
This year also has seen a trend in states amending their telehealth laws to expressly permit telehealth services via audio-only communications rather than requiring providers to use video technology.
Yet another issue highlighted in EBG’s 2022 Telemental Health Laws update is the number of state Medicaid programs that have broadened their coverage of telehealth services. Certain programs made permanent the temporary expansions in telehealth reimbursement put in place because of the COVID-19 pandemic. For example, some states’ Medicaid programs now provide coverage for certain services supplied through audio-only modalities.
Telehealth and COVID-19: Increased Engagement
Before the COVID-19 pandemic, upward trends in telehealth use were steady but slow. However, circumstances surrounding the pandemic, along with supporting regulatory and policy changes, dramatically reduced barriers to telehealth access and have promoted telehealth as a way to deliver acute, chronic, primary, and specialty health care. This has resulted in noticeably increased engagement by patients.
Interest in and acceptance of telehealth services continue to grow. More than ever, federal and state legislators are under pressure to codify the flexibilities granted in response to the COVID-19 pandemic that boosted access to telehealth services. Meanwhile, the increased use of telehealth has put a much greater focus on the potential for fraudulent behavior and the need for enforcement activity. Telehealth providers should continue to monitor developments in federal and state laws, regulations, and policies to capitalize on telehealth opportunities while at the same time making investments in compliance infrastructures to operate in accordance with applicable laws.