Behavioral Health

Overview

The complex legal and regulatory landscape that plays such an outsized role in the health care industry takes on another order of complexity when it comes to behavioral health.

Our behavioral health attorneys help providers and health plans of all kinds navigate the constantly evolving landscape, which is filled with unique challenges and fraught with compliance pitfalls.

As the demand for behavioral health services remains high—and as access to those services lags woefully behind—our clients depend on us to help them launch their businesses, get reimbursed for their services, and maintain compliance with the intimidating array of behavioral health laws, rules, and regulations. Clients value our deep roots in behavioral health provider operations and regulatory policy and our commitment to serving as thought leaders in the industry.

We Know the Industry

Our behavioral health team has a broad and deep bench of experience in the behavioral health space. For decades, we have helped clients of all sizes with their regulatory compliance, operational, transactional, investigation, and litigation needs.

Advancing New Service Models

The behavioral health services system is in the midst of a major transformation. New models of care are being legalized, authorized, regulated, and reimbursed on a rolling basis across the country. Behavioral health providers and other clients need help navigating this complex and quickly evolving landscape. For decades, we have participated in developing regulatory and program policy, pushing the boundaries of behavioral health service models. Our behavioral health lawyers provide clients with advice and insight drawn from our experience supporting innovative practices in obtaining changes in federal, state, and local laws and regulations; developing clinical models, coverage guidelines, and accreditation programs; and creating operational and compliance policies to advance new models of care.

Providing Comprehensive Solutions

The full gamut of legal services offered by our team of behavioral health attorneys also includes the following:

Compliance

Counseling clients on complying with federal and state operational regulations, funding program requirements, and accreditation standards
Advising substance use disorder (SUD) providers and marketing organizations on Opioid Addiction Recovery Fraud Prevention Act compliance
Helping mental health (MH)/SUD providers ensure state licensure compliance
Representing behavioral health providers, plans, and other entities in the development of network agreements that satisfy business needs and comply with the rapidly evolving regulatory environment
Advising on complying with state and federal MH privacy laws (including 42 CFR Part 2 and HIPAA), and assisting with privacy-related compliance program development, government relations, and policy advocacy
Providing advice on payor-provider contracting; MH/SUD coding, coverage, and payment; reimbursement and parity; grant funding; and medical necessity issues
Supporting new entrants and service area expansions in the psychiatric specialty pharmacy market, and helping clients navigate state pharmacy licensing and Medicaid enrollment/coverage issues relating to psychiatric specialty pharmacies

Operations

Providing advice and counsel regarding compliance with the Emergency Medical Treatment and Active Labor Act (EMTALA) as it applies to patients with psychiatric conditions and substance use disorders in the emergency environment
Supplying clients with step-by-step guidance and support in the often challenging process of launching a platform for the online delivery of behavioral (also known as "telebehavioral" or "telemental") health services
Providing advice to hospitals and MH/SUD provider facilities on how to more effectively manage the safe transfer and discharge of long-term, complex psychiatric patients
Counseling MH/SUD service organizations on occupational safety and health matters
Advising on crisis and risk management, including the development of crisis management protocols
Navigating owners and developers through every phase of the process of constructing or expanding an MH/SUD provider facility while minimizing risks and maintaining regulatory compliance from conception to completion and beyond

Transactions

Leading and handling all aspects of corporate and health care transactions, including mergers and acquisitions, involving for-profit and nonprofit MH/SUD companies
Conducting due diligence for private equity and venture funds looking to invest in MH/SUD service organizations
Offering private equity and venture funds detailed industry and market insights, which are based on our in-depth regulatory and other experience gained from advising a range of MH/SUD service providers
Designing, establishing, counseling, and repairing the legal structures necessary to permit non-licensed investors to establish and develop partnerships with licensed MH and SUD providers, and addressing ancillary unlicensed services and technologies
Leveraging experience in Applied Behavior Analysis (ABA) therapy and related services to conduct due diligence for potential acquisitions of ABA-specific practices, as well as support ABA providers with respect to regulatory and legal compliance, payor interactions, and business expansion considerations

Investigations

Counseling behavioral health providers on responding to government inquiries into allegations of fraud and abuse, performing internal investigations, and defending against fraud and abuse investigations and criminal prosecutions
Defending companies in Federal Trade Commission investigations and enforcement efforts related to allegations of improper marketing of SUD treatments
Assisting clients with privacy-related investigations and enforcement defense

Litigation

Representing hospitals, health systems, and providers in civil commitment litigation
Representing MH/SUD service organizations’ management in workplace safety and health litigation arising out of federal and state enforcement actions
Providing representation to clients in payor-provider contract, reimbursement and parity, and medical necessity and payment disputes

Our Telemental Health Laws App

As the online delivery of telebehavioral or telemental health services grows exponentially, we continue to update our invaluable app, Telemental Health Laws, a comprehensive collection of state regulatory requirements for all 50 states plus the District of Columbia and Puerto Rico. This free app, available to anyone, provides users with state-specific content relating to the regulatory requirements for professional practitioners and stakeholders in multiple MH fields.

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Experience

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Currently assisting multiple startup telebehavioral health entities in starting up their businesses nationally. We advise these entities on corporate, regulatory, provider network, managed care, and reimbursement issues.
Currently providing advice to a nascent network of a dozen behavioral and medical health care providers (also known as a “Behavioral Health Care Collaborative”) in New York on legally compliant ways to organize a shared infrastructure and integrated care delivery model in order to improve health outcomes, manage costs, and participate in cutting-edge value-based payment arrangements.
Currently assisting behavioral health providers regarding workplace violence issues, including compliance with state and federal laws, development of policies and programs, support regarding government and accreditor investigations, and representation in contested proceedings and trials.
Currently representing multiple states regarding solutions for complex patient discharge challenges and long-length-of-stay patients, including programs for reduction of avoidable delays, development of community partnerships and government approaches, guidance regarding highly acute cases, and litigation.
Currently representing various hospitals, health systems, behavioral health providers, and industry stakeholders nationally regarding state civil commitment laws, including statutory and regulatory interpretation, legislative support, and advocacy in court cases.
Advised numerous behavioral health providers regarding duty-to-warn obligations, including legal and professional standards, privacy and confidentiality aspects, and patient-specific support.
Provided frequent advice and legal support to clients in connection with patient safety events, working as part of the clients’ response teams to address regulatory, licensing, investigation, and communications issues.
Served as counsel to a national association focused on MH and behavioral health care issues. We tracked recent and significant federal rulemaking efforts related to MH parity, prepared summaries of the relevant proposed and final rules upon publication, and delivered webinar presentations for the association’s membership discussing key provisions in the proposed and final rules.
Advised a clinic in Washington, DC, that provides primary care services to Latino residents of the District. The clinic won a $500,000 grant from a large insurer to implement a regional telepsychiatry program. We are currently advising the clinic on a number of regulatory issues regarding the implementation of the telepsychiatry program.
Advised numerous major telebehavioral companies on regulatory issues concerning telehealth, corporate practice of medicine, reimbursement, the Food and Drug Administration, compliance, and fraud and abuse.
Reviewed and negotiated managed care agreements for providers with payors involving behavioral health carve-in matters.
Provided advice and counsel on state-specific requirements related to crisis management in telemental health services, the development of applicable crisis management protocols, and the structure of management and other arrangements with behavioral health practices in compliance with applicable state corporate practice of medicine restrictions.