More on Telehealth

Telehealth laws, especially for behavioral health, are increasing access despite remaining legislative barriers

Adoption of telehealth for mental health services is increasing, highlighting the need for a more cohesive legal and regulatory framework.

Jeff Lagasse, Associate Editor

Telehealth laws, they are a-changin'. While states are largely responsible for crafting laws regulating the use and access of telehealth, the legislative picture is gradually becoming more favorable for the remote healthcare model. Adoption, especially in rural markets, is becoming more widespread.

This is particularly true when it comes to the use of telehealth to administer mental health services. A new survey from national law firm Epstein Becker Green has found that both state and federal lawmakers increasingly support coverage for mental health services provided via remote technology, with all 50 states and the District of Columbia now providing some level of coverage for telehealth services for their Medicaid members.

Earlier this year, for example, Massachusetts approved coverage of telehealth services for its 1.9 million Medicaid members seeking access to psychologists, psychiatrists, psychoanalysts, clinical social workers, behavioral health nurses, nurse practitioners, and professional counselors.

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Kentucky adopted legislation that went into effect July 1, which allows telehealth visits to take place in a patient's home, while Arizona expanded its telehealth law to include coverage of treatment services for substance-abuse disorders.

At a federal level, home-based telemental health has bipartisan support in Congress in the Mental Health Telemedicine Expansion Act, which was reintroduced earlier this year.

Amy Lerman, a member of Epstein Becker Green in the Health Care and Life Sciences practice, said laws on the books and under consideration are important due to ongoing shortages of behavioral health providers, even in the bricks-and-mortar context. With a lack of access and resources for patients, telehealth seems a natural fit, owing to the conversational nature of a typical behavioral health session. Conversation-based healthcare encounters are a natural fit for telehealth's modality.

"Now, in 2019, it's not perfect, but there's a lot more informal guidance, a lot more conversation on the websites," said Lerman. "We're seeing there are a lot of positive changes."


Bills that have been introduced at the state level to support these efforts have been largely bipartisan in nature, said Lerman. Regulations guiding the use of telemental health to date have been administered largely by various state boards of medicine, and those boards have increasingly been addressing things like counseling and psychology.

Where things can get tricky is in the patchwork nature of the regulatory picture. State regulations, by nature, are confined to state boundaries; any legislation on the books in North Dakota, for instance, applies only to North Dakota.

But telehealth doesn't know any boundaries, at least hypothetically. So without a more robust federal framework, providers looking to offer any kind of telehealth services have to be aware of various state laws and administer care accordingly. Telehealth Company X may be located in New Mexico, but if a physician on its network is tending to a North Dakotan, they need to adhere to North Dakota law.

That represents a potential barrier to more widespread adoption. Another is that state parity laws are largely loose and ineffective. Such laws are intended to ensure the same coverage of services provided in person, but the laws themselves are often not very robust -- simply stating that telehealth services must be medically necessary in order to be covered, or that payers should not exclude services solely because they were provided through telehealth.

Telehealth parity laws are currently in effect in 39 states and the District of Columbia. Momentum came to a halt last year as payers, providers, and legislators in several states couldn't reach agreements on reimbursement levels.

Telehealth isn't completely off the federal radar. HIPAA addresses it to a certain extent, and with respect to the prescribing of controlled substances, there's the federal Controlled Substances Act. So far there's not a whole lot more than that, but Lerman anticipates that future DEA regulations could allow for the long-awaited "special telemedicine registration," which would enable physicians to prescribe controlled substances without conducting a prior in-person examination first.

Also representing movement at the federal level is the CONNECT for Health Act of 2019, introduced yesterday in the Senate, which would grant authority for the Secretary of the Department of Health and Human Services to waive current telehealth restrictions in fee-for-service Medicare, including remote services in the home. It has the support of numerous healthcare organizations, including the American Hospital Association, the American Medical Association, and the Health Information and Management Systems Society (HIMSS), the parent organization of Healthcare Finance News.

And then there's the interstate compact that was established to facilitate licensure, which still lacks involvement from some of the more populous states in the country.

"The interstate compact allows anyone who has a principal license in one of the compact states an avenue for seeking out licenses in any of the other compact states," said Lerman. "But some of the bigger states, the ones you would want to be in there, aren't a part of it yet. New York, California, Florida, Texas -- in those places it hasn't been introduced yet."

Those are all hurdles telemental health must jump in order to truly break through into the mainstream, but the Controlled Substances Act at least provides some hope that the remote prescribing issue can be addressed, assuming planned revisions take place.

As it stands now, the Act was last amended in 2008, and included some requirements around remote prescribing. But 11 years ago, the direct-to-consumer model was not as popular or prevalent. In 2016 the Drug Enforcement Agency said updates were on its to-do list, but further developments have remained elusive.

Last autumn, President Trump signed a support act into law that gave a deadline of last Thursday to put new regulations in place, but Thursday came and went and all was still quiet on the remote prescribing front. Lerman expects that if passed, the new regulations could well allow telemental health providers greater freedom and scope in how they're able to administer care.

A further area of focus, said Lerman, should be in the coverage and reimbursement of telemental health services.

"People pay for it out of pocket, but there's great interest by consumers of the healthcare system, and payers as well, to cover these types of services," she said. "The benefits are potentially numerous in terms of providing more access to care, a smoother continuum of care, and promoting proactive rather than reactive care."

Twitter: @JELagasse

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