By Amy F. Lerman
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 since 2016. We are pleased to release our latest and most comprehensive compilation of state telehealth laws, regulations, and policies within the mental/behavioral health practice disciplines. And for the first time, in response to reader requests, we have added content specific to provision of telehealth services in Puerto Rico.
2020: The Year of Increased Recognition of Telehealth Benefits
There is a well-known shortage of behavioral health providers in the United States. Expanding telehealth technologies to increase access to psychiatrists, psychologists, counselors, therapists, and other behavioral health professionals has gained attention and validation because of the pandemic and the ensuing lockdowns.
For most of 2020, health care providers have dealt with the implications of the novel coronavirus disease (“COVID-19”) on their professional practices. While providers have struggled to care for patients amid COVID-19 contagion concerns, federal and state regulatory efforts have significantly helped ease the path to greater provision of services via telehealth. As Center for Medicare & Medicaid Services (“CMS”) Administrator Seema Verma recently said, “this is just the beginning of our work on telehealth—we will have more flexibility coming. ...”
A Growing Focus on Telehealth Fraud and Enforcement
Telehealth platforms to deliver health care services have expanded rapidly in recent years. And as with many areas of health care, with expansion and innovation comes a higher risk of enforcement activity. In September 2020, the U.S. Department of Justice (“DOJ”) and the U.S. Department of Health and Human Services (“HHS”) Office of Inspector General (“OIG”) put this point into action, announcing that the agencies had jointly charged 345 defendants across 51 judicial districts with allegedly submitting more than $6 billion in false and fraudulent claims—$4.5 billion of which was directly tied to telehealth and “telefraud”—in the 2020 National Health Care Fraud and Opioid Takedown (the “Takedown”).
The Takedown is the first time federal agencies have focused so sharply on enforcement activity involving telehealth providers. In addition to targeting opioid distribution schemes, and fraud connected to substance abuse treatment facilities, the Takedown involved telefraud schemes that allegedly leveraged aggressive marketing and telehealth services. Alleged conspirators in these telefraud schemes included telehealth company executives, owners of durable medical equipment companies, genetic testing laboratories, pharmacies, medical practitioners, marketers, and business owners, all of whom OIG claims “scammed hundreds of thousands of unsuspecting patients in their homes.”
While by no means the first sign that telehealth is ripe for enforcement, the Takedown is a warning to the telehealth industry that there is a need not only to consider the law from a policy and operations perspective, but also to invest in a robust compliance infrastructure. The Takedown sharply demonstrates that for telehealth providers compliance is no longer a nice-to-have but a must-have as part of their operational infrastructure.
General Telemental/Telebehavioral Provisions Across the 50 States
Much of the state-level regulatory guidance on telemedicine/telehealth services focuses on the provision of services by physicians, but other state professional boards have continued to develop comparable guidance for other types of mental/behavioral health professionals (e.g., psychologists, social workers, and counselors).
The terms “telemedicine” and “telehealth” are similarly defined across states that have definitions for these terms. Generally they are defined as the practice of medicine (or other set of professional health care services) via electronic communication or other specified 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 these terms also specify that services provided via audio-only, e-mail, or facsimile generally are not considered by states to be the provision of “telemedicine” or “telehealth” services.
All states require physicians and other health care professionals to hold a valid license to practice that has been issued by the state’s relevant professional board. A few states—Alabama, Florida, Louisiana, Maine (Physicians only, and only for consultative services), Minnesota, Nevada, New Mexico, Oregon, Tennessee (Osteopaths only), and Texas—continue to issue “special telemedicine licenses” to qualified out-of-state physicians. Typically these special licenses let physicians practice across state lines without obtaining a full professional license from the state.
With respect to remote prescribing, states generally allow licensed physicians to prescribe non-controlled substances via telehealth, and many states permit this to be done without requiring that the physician conduct a prior in-person examination; a growing number of states allow that examination to occur via telehealth instead. States also continue to adopt specific practice standards for remote prescribing.
Roughly half of states have data privacy/confidentiality laws, regulations, or guidance specific to the provision of telehealth services that generally go above and beyond requiring health care providers merely to follow federal and state privacy/confidentiality requirements pertaining to medicine. In addition, 40 jurisdictions have established some type of informed consent requirements that must be followed before telehealth services are provided.
Telehealth and COVID-19
Before the COVID-19 pandemic, upward trends in telehealth use were steady but slow. However, the circumstances surrounding the pandemic, along with supporting regulatory and policy changes, have reduced barriers to telehealth access and have promoted telehealth as a way to deliver acute, chronic, primary, and specialty health care. Below are some events that have facilitated the recent upsurge in telehealth use.
Impacts at the Federal Level
- In January 2020, HHS Secretary Alex Azar used his authority under the Public Health Service Act to declare a public health emergency for the entire United States. Following President Trump’s declaration of a national emergency in March 2020, Secretary Azar issued a more detailed statement that specifically mentioned the actions he would be taking pursuant to Section 1135 of the Social Security Act, which gives the HHS Secretary authority to waive certain requirements during national emergencies, including the waiver or modification of “[r]equirements that physicians or other health care professionals hold licenses in the State in which they provide services, if they have an equivalent license from another State (and are not affirmatively barred from practice in that State or any State a part of which is included in the emergency area).” These waivers apply to the government health care programs.
- On March 13, 2020, President Trump issued a Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak.
- In a summary published on March 15, 2019, CMS clarified the scope of Section 1135 waivers: “In addition to the statutory limitations that apply to 1135-based licensure waivers, an 1135 waiver, when granted by CMS, does not have the effect of waiving State or local licensure requirements or any requirement specified by the State or a local government as a condition for waiving its licensure requirements. Those requirements would continue to apply unless waived by the State. Therefore, for all practical purposes, in order for the physician or non-physician practitioner to avail him- or herself of the 1135 waiver under the conditions described above, the State also would have to waive its licensure requirements, either individually or categorically, for the type of practice for which the physician or non-physician practitioner is licensed in his or her home State” (emphasis added).
- Under the Section 1135 waiver applicable to telehealth services, Medicare has been permitted to pay for office, hospital, and other visits furnished via telehealth across the country, including in patients’ places of residence (as of March 6, 2020). A range of providers, including doctors, nurse practitioners, clinical psychologists, and licensed clinical social workers, have been able to offer telehealth services to their patients this way. Additionally, the HHS-OIG has provided flexibility for health care providers to reduce or waive cost sharing for telehealth visits paid by federal health care programs.
- And significantly, the Drug Enforcement Agency (“DEA”) invoked its public health emergency exception under 42 U.S.C. § 247d (Section 319 of the Public Health Service Act), as set forth in 21 U.S.C. § 802(54)(D), to the federal Ryan Haight Act requirement to conduct an in-person examination before prescribing controlled substances via telemedicine. Accordingly, as of March 16, 2020, and continuing for as long as the Secretary’s designation of a public health emergency remains in effect, DEA-registered practitioners throughout the United States have been permitted to prescribe all schedule II-V controlled substances to patients for whom they have not conducted an in-person medical evaluation, provided all of the following conditions are met:
- The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of his/her professional practice;
- The telemedicine communication is conducted using an audiovisual, real-time, two-way interactive communication system; and
- The practitioner is acting in accordance with applicable federal and state laws.
Impacts at the State Level
- On March 24, 2020, Secretary Azar issued a letter to state governors asking for them to take certain immediate actions in response to COVID-19, many of which would increase access to telehealth services. Specifically, he asked state governors to:
- allow health care professionals licensed or certified in other states to practice in their respective states, either in person or through telehealth;
- relax certain statutory and regulatory standards to make it easier for health care professionals to establish the provider-patient relationship and treat patients using telehealth technologies;
- relax scope-of-practice requirements;
- allow physicians to supervise a greater number of other health professionals and to do so using remote or telephonic measures;
- allow for rapid certification/licensure for health professionals;
- waive or limit medical malpractice insurance policies; and
- eliminate restrictions on the settings of care where certain health professionals can see patients.
- In response, individual states issued their own emergency orders. States have taken different approaches to the professional licensure issue, with some waiving requirements and others simply modifying them to make obtaining licenses faster and easier. States have also taken different approaches to whether these changes apply specifically to providing COIVD-19-related services or apply to health care services more generally.
- In addition, states applied for Section 1135 waivers. Section 1135 approval letters have been posted on the CMS website.
Interest in and acceptance of telehealth services continues to grow. Current events like the COVID-19 pandemic have put more pressure than ever on federal and state legislators to promote access to telehealth services. Meanwhile increased use of telehealth puts greater focus on the potential for fraudulent behavior and enforcement activity. Providers should continue to monitor developments in federal and state laws, regulations, and policies to capitalize on telehealth opportunities while staying compliant with applicable laws.
 U.S. Department of Health & Human Services, Office of Inspector General, 2020 National Health Care Fraud Takedown (Oct. 1, 2020), available at https://oig.hhs.gov/newsroom/media-materials/2020takedown.
 This list is current as of July 2020. Ohio repealed its law that provided for a special telemedicine license, and now a full license to practice is required by the state. Oklahoma’s State Board of Osteopathic Examiners has the authority to issue a special telemedicine license but, at the present time, such a license is not offered to potential applicants.
 Center for Connected Health Policy, State Telehealth Laws & Reimbursement Policies Report (Spring 2020), https://www.cchpca.org/telehealth-policy/state-telehealth-laws-and-reimbursement-policies-report.