Telebehavioral health regulation was dominated by emergency waivers and fraud enforcement in 2020

This month saw the annual release of Epstein Becker Green’s Telemental Health Laws Survey, a state-by-state review of behavioral telehealth legislation, regulation and policies.

Available in full as a free Android and iOS app, this year’s breakdown includes regulation information for Puerto Rico, alongside the 50 states and Washington, D.C.

WHY IT MATTERS

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Outside of compiling state-specific information for use by providers and other stakeholders, the firm’s review pulls out top-level trends that characterize the government’s current role in supervising remote behavioral health delivery. For 2020, that meant increased messaging from healthcare officials such as CMS Administrator Seema Verma on the value of these services, as well as more attention from federal departments focused on enforcement.

Citing the Department of Justice and the HHS Office of Inspector General’s recent progress update on the 2020 National Health Care Fraud and Opioid Takedown, the law firm found that $4.5 billion of the year’s $6 billion in false and fraudulent claims were tied either to telehealth or “telefraud.” Those involved in these cases included telehealth executives, durable medical-equipment company owners, genetic testing labs, practitioners, marketers and others.

“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,” Amy F. Lerman, part of EBG’s Health Care and Life Sciences practice and an author of the survey, wrote in an overview of the findings. “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.”

Unsurprisingly, much of the increased government attention on behavioral telehealth came in the context of COVID-19. This action came in the form of a nationwide public health emergency declared in March, a decision by the Drug Enforcement Agency to remove the requirement for an in-person evaluation when prescribing controlled substances via telemedicine, and subsequent emergency orders issued at the state level.

The lattermost of these yielded key differences for those practicing in various states, mainly in regard to whether licensing requirements were modified or waived entirely, or whether these relaxations specifically applied to COVID-19-related care or healthcare services at large.

Outside of COVID-19 emergencies, the survey found similar definitions of the terms “telemedicine” and “telehealth” across the states, with the majority specifically excluding audio-only, e-mail or similar communications.

All states required telehealth providers to hold a state professional license, while 10 issue “special telemedicine licenses” to out-of-state physicians that sidestep the need for a full professional license. A growing number of states are allowing non-controlled substances to be prescribed through telehealth without a prior in-person examination, and about half of them have data privacy or confidentially measures in place that “go above and beyond requiring health care providers merely to follow federal and state privacy/confidentiality requirements pertaining to medicine,” Lerman wrote.

THE LARGER TREND

It’s little secret that depression, anxiety and other related behavioral health issues have become a major focus throughout the pandemic, and the issue is likely to remain a concern as rising case counts meet seasonal depression head-on.

While virtual care options have been adopted by many traditional providers, there are also a number of telehealth and digital health startups either launching new behavioral health services or further expanding on their existing business.

Hims and Heal have both dipped into telepsychiatry over the last several months, while virtual mental health providers like Ginger, Mindler and Tava – as well as wellness app-makers like Headspace and Big Health – have recently been on the receiving end of major venture capital investments.