Telemental Health Laws: Overview

By Amy F. Lerman and Francesca R. Ozinal

Epstein Becker Green (“EBG”) is proud to release updated state content in our Telemental Health Laws app. Since 2016, EBG has researched, compiled, and analyzed state-specific content relating to the regulatory requirements for professional mental health / behavioral health practitioners and stakeholders seeking to provide telehealth-focused services. The 2019 update to the app is EBG’s latest and most comprehensive compilation of state telehealth laws, regulations, and policies within the mental health / behavioral health practice disciplines.

General Telemental / Telebehavioral Provisions Across the 50 States

Much of the state-level regulatory guidance pertaining to telemedicine / telehealth services is focused on the provision of such services by physicians, although other state professional boards are slowly developing comparable guidance for other types of mental health / behavioral health professionals (e.g., psychologists, social workers, and counselors).

The terms “telemedicine” and “telehealth” are similarly defined across states that have included definitions for one or both of these terms. Generally, these terms are defined as the practice of medicine (or other set of professional health care services) via electronic communication and/or other means, occurring between a practitioner and a patient who are located in two different locations, with or without an intervening health care provider. The majority of the states that define one or both of these terms also specify that services provided via audio-only, e-mail, and/or facsimile generally do not constitute the provision of “telemedicine” or “telehealth” services.

In terms of professional licensing, all states require physicians and other health care professionals to hold a valid license to practice medicine that has been issued by the state’s relevant professional board. A small group of states (currently Alabama, Louisiana, Maine, Nevada, New Mexico, Ohio, Oregon, Tennessee (Osteopaths only), and Texas) continue to issue “special telemedicine licenses” to qualified out-of-state physicians. Typically, these special licenses provide physicians with a way to practice across state lines without having to go through the required process to obtain a full professional license from the state.

All states generally allow licensed physicians to prescribe non-controlled substances via telehealth, and typically permit this to be done without requiring that the physician conduct a prior in-person examination. A growing number of states are passing laws that are requiring their state licensing boards to adopt specific practice standards pertaining to remote prescribing.

Roughly half of the states have data privacy / confidentiality laws, regulations, and/or guidance specific to the provision of telehealth services that generally go above and beyond requiring health care providers to merely follow federal and state privacy / confidentiality requirements pertaining to the practice of medicine. In addition, 39 jurisdictions have established some type of informed consent requirements that must be followed before telehealth services are provided.[1]

Increased Recognition of Telehealth Benefits

Since EBG’s release of its 50-State Survey of Telemental / Telebehavioral Health in 2016, public recognition of the benefits of utilizing telehealth technology to provide greater access to health care services has significantly increased. While the shortage of behavioral health providers in the United States has long been acknowledged, increased utilization of telehealth technologies as a strategy to increase access to psychiatrists, psychologists, counselors, therapists, and other behavioral health professionals continues to gain attention and validation as an alternative model of care delivery.

In October 2017, the Trump administration directed the Secretary of the U.S. Department of Health and Human Services to declare the opioid epidemic a “national public health emergency.”[2] According to the Centers for Disease Control and Prevention, on average, 130 Americans die every day from an opioid overdose.[3] One of the consistently advocated strategies for tackling this opioid crisis has been inclusion of telehealth-based treatment and support services. The significant value derived from utilizing telehealth technology in tackling mental and behavioral issues, such as substance use disorders (“SUDs”), is apparent in the number of bills introduced before the U.S. Congress that include the use of telehealth technology as a strategy. These bills have been introduced at a constant pace, through both the federal and state legislatures. In October 2018, President Trump signed into law H.R. 6, the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act (“SUPPORT for Patients and Communities Act”), which will expand the geographic service areas in which SUD-focused telehealth services may be reimbursed by the Medicare program. This was a significant regulatory step, in that it allows eligible individuals with a SUD diagnosis to be treated using telehealth technology, regardless of the traditional Medicare geographic restrictions placed on the provision of telehealth services.

In additional, states have taken a variety of different approaches to addressing the opioid crisis, many of which involve the use of telehealth technology. Several states, including Indiana, Michigan, and Missouri, have introduced and/or passed legislation that would expand remote prescribing of controlled substances for treatment of SUDs. For example, in 2017, Indiana passed legislation that expanded the list of controlled medications that practitioners may prescribe via telehealth platforms, including some that can be used to treat opioid dependence disorders.[4] Similarly, Michigan and Missouri permit the prescribing of controlled substances via telehealth as long as physicians adhere to the standards of care applicable to their profession relative to the act of prescribing controlled substances.[5]

Despite such significant and beneficial activity at both federal and state levels, there is still the matter of federal preemption by the Ryan Haight Online Pharmacy Consumer Protection Act of 2008, which prohibits remote prescribing of controlled substances (except under very restricted exemptions) unless an in-person examination between the prescribing physician and the patient has taken place.[6] However, the SUPPORT for Patients and Communities Act officially gave the Drug Enforcement Agency a one-year timeline to promulgate regulations that would allow for the long-awaited “special registration” to become a reality. Once in place, the special registration promises to be a game changer.

Beyond applicability to the opioid crisis, telehealth has continued to gather bipartisan support in Congress through various pieces of legislation, such as the Mental Health Telemedicine Expansion Act (H.R. 1301), which is pending in the current 116th Congress. This bill excludes certain mental health telehealth services from specified requirements under Medicare, including originating site requirements. Another recent and important bipartisan piece of legislation was the Bipartisan Budget Act of 2018 (“BBA”). The BBA expanded Medicare coverage for certain telehealth services by allowing telehealth services to be provided to beneficiaries dealing with end-stage renal disease (“ESRD”) in their homes, as well as to beneficiaries who are being treated by practitioners participating in accountable care organizations (“ACOs”).[7] The BBA also lifted the geographic requirements traditionally required by Medicare’s coverage rules for telehealth services (e.g., originating sites, rural health professional shortage areas, and counties outside Metropolitan Statistical Areas) for telehealth services rendered to beneficiaries with ESRD, to those being treated by ACO practitioners, or for beneficiaries who have been diagnosed with or evaluated for, or are being treated for, symptoms of an acute stroke.[8]

Telehealth Expansion in the Government Sector

Separately, the federal government has encouraged states to utilize telehealth technology to increase access to health care services through state Medicaid programs. In June 2018, a letter issued by the Centers for Medicare & Medicaid Services encouraged states to utilize telemedicine and telepsychiatry to facilitate coordinated care for Medicaid recipients.[9] Currently, all 50 states and the District of Columbia provide some level of reimbursement for some type of live video (i.e., synchronous) telehealth services through their Medicaid fee-for-service (“FFS”) programs.[10] Telehealth utilization through state Medicaid programs has continued to expand, which, in turn, has allowed program recipients greater access, especially in schools. Since 2013, several state Medicaid programs, including New York, have expanded the list of eligible originating sites to include schools. New York expanded the list of state-sanctioned care delivery sites for telehealth to public, private, and charter elementary and secondary schools, as well as child care programs and day care centers, thereby giving children virtual access to physicians, dentists, and mental health counselors.[11] School-based telehealth services can cover a broad range of care, including primary and acute care, chronic disease management, behavioral and mental health, speech therapy, dental screenings, nutritional counseling, and prevention and health education.

Despite Medicaid having fewer restrictions regarding telehealth coverage as compared to its Medicare counterpart, there is limited federal guidance or information regarding the implementation of telehealth services in state Medicaid programs or coverage parameters for states choosing to offer such services. While most state Medicaid programs have abandoned the requirement that telehealth services be provided only in rural geographic areas in order to qualify for reimbursement, various restrictions remain on where Medicaid recipients may be located to receive these services. Presently, 14 states have adopted policies that explicitly allow for a Medicaid recipient’s home to serve as an originating site under certain circumstances.[12] In addition, although many states impose restrictions on the types of providers who are eligible for reimbursement for services provided via telehealth, many states have expanded their lists of eligible providers to extend beyond physicians. For example, Virginia’s more expansive policy on eligible providers allows for 13 different types of providers to be reimbursed for telehealth services.[13] Thus, it is no surprise that state Medicaid programs are highly variable in their approaches to covering and reimbursing for telehealth services. This variability persists as one of the barriers to greater adoption of telehealth, because health care practitioners treating Medicaid populations in states risk steep penalties for noncompliance, including fines and the potential loss of their professional licenses to practice.

Comparatively, all eyes remain focused on the Department of Veterans Affairs (“VA”), as the agency has worked in recent years to significantly expand its telehealth-focused programs. In June 2018, Congress mandated the VA to provide veterans with a self-scheduling, online appointment system, and to provide health care services, whether in person or using telehealth technologies. While the VA acknowledged the state-to-state variability of telehealth requirements, thus potentially exposing its physicians to penalties for the unauthorized practice of medicine, the agency nonetheless developed and published a final rule that supersedes state-to-state telehealth regulations by allowing VA health care providers to render services via telehealth in any state, notwithstanding any conflicting state laws regarding licensure, registration, or certification requirements. For example, the VA telehealth program allows its providers to offer the same level of care to all beneficiaries regardless of a beneficiary’s or health care provider’s location and despite state specific geographic restrictions.[14] Since its rollout, the VA implemented its telehealth program at more than 900 sites of care and for more than 50 different specialty areas of care. In fiscal year 2017, the VA provided care to more than 727,000 patients through more than two million telehealth episodes of care.[15]

Continued and Persistent Barriers to Greater Telehealth Adoption

Across the wide range of public and private payors, a lack of meaningful coverage and reimbursement requirements for telehealth services continues to be a barrier to greater adoption and expansion.

Notwithstanding continued and increased recognition by industry of the benefits of telehealth, according to the March 2018 Medicare Payment Advisory Commission (“MedPAC”) report to Congress, adoption and utilization of telehealth by the Medicare program has been low. In 2016, only 108,000 Medicare beneficiaries accounted for over 300,000 telehealth visits totaling $27 million in spending, which constituted only 0.3 percent of Medicare FFS Part B beneficiaries and 0.4 percent of Medicare FFS spending overall.[16] Although the MedPAC report did not attempt to attribute low utilization of telehealth services among the Medicare beneficiaries to any specific reasons, one can surmise that perhaps the restricted Medicare coverage of telehealth services (e.g., originating site requirements and geographic requirements) may factor into such low utilization, in addition to limited education and training for Medicare beneficiaries in the use of telehealth technologies. However, as mentioned above, the BBA has now expanded Medicare coverage for telehealth services and allows for a beneficiary’s home to be an originating site under certain circumstances. It will therefore be interesting to see whether expanding coverage parameters, and continued growth in beneficiaries’ familiarity with telehealth technologies, will encourage the usage of telehealth services among Medicare beneficiaries.

MedPAC also reported that, among commercial health plans, the use of telehealth services was less than 1 percent of plan enrollees, despite plans offering their members some level of coverage to utilize telehealth services.[17] However, MedPAC noted that coverage of telehealth services continues to vary widely across commercial health plans, with most covering only one or two types of telehealth-based services.[18] Interestingly, only half of the commercial health plans that participated in MedPAC’s survey reported coverage of a member’s home as an eligible originating site.[19] According to MedPAC, most commercial health plans have had little incentive to offer telehealth services more broadly because, to date, there has been scant evidence of reduced costs or improved outcomes associated with telehealth services, although MedPAC noted that the availability of telehealth services has improved their members’ access to health care services overall.[20]

Telehealth parity laws, currently in effect in 39 states and the District of Columbia, are intended to ensure the same coverage of (and, in some cases, reimbursement for) telehealth services as is in place for comparable services provided in person. Yet, despite the existence of these laws in so many states, the laws themselves are often not very robust, simply stating that telehealth services must be medically necessary (in order to be covered)[21] or that payors should not exclude services solely because they were provided through telehealth.[22] States continue to enact new parity laws or to expand existing parity laws. For example, beginning in January 2019, Arizona expanded its existing parity law to include coverage of SUD treatment services provided through telehealth. Kentucky adopted legislation that went into effect on July 1, 2019, which allows for telehealth visits to take place in a patient’s home and enables commercial health plans to reimburse psychologists, therapists, and other non-physician providers for telehealth visits.[23] On a broader scale, however, the potentially positive impacts of state telehealth parity laws are not yet being meaningfully felt.

Conclusion

Overall, interest in, and acceptance of, telehealth services continues to increase. Current events and issues, such as the opioid epidemic, have put more pressure than ever before on federal and state legislators to pass laws that promote access to telehealth services. Providers should continue to monitor developments in federal and state laws, regulations, and policies in order to capitalize on telehealth opportunities while maintaining compliance with applicable laws.

ENDNOTES

[1] Center for Connected Health Policy, Telehealth Medicaid & State Policy (Spring 2019), https://www.cchpca.org/sites/default/files/2019-05/cchp_report_MASTER_spring_2019_FINAL.pdf.

[2] WhiteHouse.gov, Remarks by President Trump on Combatting Drug Demand and the Opioid Crisis (Oct. 26, 2017), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-combatting-drug-demand-opioid-crisis/.

[3] Centers for Disease Control and Prevention, Understanding the Epidemic (last updated Dec. 19, 2018), https://www.cdc.gov/drugoverdose/epidemic/index.html.

[4] Ind. Code Ann. § 25-1-9.5-8 (2017).

[5] Mich. Comp. Laws § 333.16285; Mo. Rev. Stat. §§ 191.1146, 334.108.

[6] 21 U.S.C. § 802(54).

[7] Bipartisan Budget Act of 2018 §§ 50302, 50324, 42 U.S.C. §§ 1395rr, 1395jjj (2018).

[8] Id. at 50324 (42 U.S.C. § 1395jjj).

[9] Letter from Tim Hill, Acting Director, Dept. of Health and Human Serv’s, to State Medicaid Directors (June 11, 2018), https://www.medicaid.gov/federal-policy-guidance/downloads/smd18006.pdf.

[10] Center for Connected Health Policy, supra note 1.

[11] N.Y. Pub. Health Law § 2999-cc (2017).

[12] Center for Connected Health Policy, supra note 1.

[13] Id.

[14] 83 Fed. Reg. 21897 (May 11, 2018).

[15] U.S. Department of Veterans Affairs, Veterans Health Administration, Office of Connected Care, VA Telehealth Services (FY 2017 data), available at https://www.va.gov/anywheretoanywhere/docs/
Telehealth_Services_factsheet.PDF
.

[16] Medicare Payment Advisory Commission, Report to the Congress: Medicare Payment Policy (Mar. 2018), at 473.

[17] Id. at 474.

[18] Id. at 488.

[19] Id.

[20] Id.

[21] Kan. Stat. Ann. § 40-2,213(e)(1).

[22] Ky. Rev. Stat. § 304.17A-138.

[23] Center for Connected Health Policy, supra note 1.