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Since 2016, Epstein Becker Green (EBG) has researched, compiled, and analyzed state-specific content relating to regulatory requirements for professional mental/behavioral health practitioners and stakeholders seeking to provide telehealth-targeted services.

We are pleased to publish our latest compilation of state telehealth laws, regulations and policies within the mental/behavioral health practice the disciplines.

2022: Continued recognition of the benefits of telehealth

In 2022, the shortage of mental/behavioral health care providers in the United States continued to create challenges accessing care for many Americans. However, there has also been ongoing innovation and ongoing efforts to expand access to telehealth technologies with the goal of increasing patient access to mental/behavioral health providers, including psychiatrists, psychologists, counsellors, therapists and other trained professionals.

Throughout 2022, healthcare providers continued to grapple with the implications of COVID-19 on their professional practices, underscoring the importance of ongoing federal and state efforts that intensified in 2020, and continued ever since, to help ease the regulatory path to the best telehealth service offering. In 2022, we saw how federal and state governments continued to support regulatory flexibilities put in place at the height of the pandemic that fostered increased use of telehealth, both as lessons learned and to help lawmakers. and regulators to decide what temporary changes to make. more permanent.

2022: continued focus on telefraud and law enforcement

The number of platforms providing healthcare services has continued to proliferate and, as in many areas of healthcare, expansion and innovation come with an increased risk of escalation activities. law application. In 2022, the U.S. Department of Justice (DOJ) and the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) continued to build on their successful takedowns of ” telefraud” through continued and aggressive enforcement of telehealth laws. More recently, in July 2022, the DOJ announced criminal charges against 36 defendants in 13 federal districts across the United States for more than $1.2 billion in alleged fraudulent schemes, many of which involve telehealth services.

Also in July 2022, the OIG issued a Special Fraud Alert regarding arrangements with telemedicine companies. The alert sets out seven characteristics that the OIG says could suggest that a given arrangement has an increased risk of fraud and abuse. The alert follows dozens of civil and criminal investigations into fraud schemes involving companies that claimed to provide telehealth, telemedicine or telemarketing services, but allegedly engaged in bribes and substandard medical practices to generate medically unnecessary orders and prescriptions. These purported telemedicine companies, the OIG said in the alert, “have exploited the growing acceptance and use of telehealth” and present “considerable harm potential to federal health care programs and their beneficiaries.” “. The alert is a reminder – or for some, probably a wake-up call – that telemedicine companies will be held to the same compliance standards as other providers.

In September 2022, the OIG published a data sheet on program integrity risk in Medicare telehealth billing in the first year of COVID-19. Based on a review of 742,000 providers who billed Medicare fee-for-service and Medicare Advantage between March 1, 2020 and February 28, 2021, the OIG identified seven measures to identify providers who are at high risk of incorrect Medicare telehealth billing:

  1. Billing for both a telehealth service and a facility fee for most visits
  2. Billing for telehealth services at the highest and most expensive level every time
  3. Billing for telehealth services for a high number of days in a year
  4. Billing both Medicare fee-for-service and a Medicare Advantage plan for the same service for a high proportion of services
  5. Billing for a high average number of hours of telehealth services per visit
  6. Billing for telehealth services for a large number of beneficiaries
  7. Billing of a telehealth service and order of medical equipment for a high proportion of beneficiaries

These enforcement actions and program integrity activities should serve as a warning to industry that it is necessary not only to examine the legal requirements related to the provision of telehealth services from a policy and operational, but also to invest in a solid compliance infrastructure. Coordinated efforts among various federal and state agencies will continue and highlight the increased scrutiny telehealth providers face as the industry expands.

2022 Trends: General Telemental/Telebehavioral Provisions in All States

As has always been the trend, a large majority of state-level regulatory guidance on telemedicine/telehealth services continues to focus on medical services. However, as we have seen in recent years, other state professional boards have developed comparable parameters and guidance for other types of mental/behavioral health professionals, such as psychologists, social workers and advisers.

While all states require physicians and other healthcare professionals to hold valid licenses to practice issued by the relevant state professional board, a strong trend throughout 2022 has been for more states to adopt various covenants interstate agreements that allow specific providers to practice in states where they are not licensed. as long as they hold a valid license in their home country. GBS 2022 Telemental Health Laws The update highlights the number of states that have joined one or more professional licensing pacts. For instance:

  • Thirty-seven states, the District of Columbia and the Territory of Guam joined the Interstate Medical License Compact (for doctors).
  • Thirty-seven states, the US Virgin Islands and Guam have joined the Nurse License Agreement (for registered nurses and licensed practical nurses).
  • Twenty-six states joined the Intergovernmental Psychology Pact (PSYPACT).
  • The Advanced Practice Registered Nurse Compact, which takes effect once seven jurisdictions enact legislation, continues to gain momentum.
  • To date, 17 states have adopted the Advisory Compact, and the Advisory Compact Commission hopes to begin accepting applications in late 2023 or early 2024.

Another notable development in 2022 was state legislation expressly allowing certain outside providers to provide telehealth services to state patients under certain circumstances. States taking action in this regard include Alabama, Illinois, Ohio and Virginia. Few states have passed such legislation to date, but these are potential signs of a growing trend.

Another notable trend highlighted in the EBG 2022 Telemental Health Laws The update concerns advice on distance prescribing practices. Broadly and gradually, most states have allowed licensed physicians to prescribe uncontrolled substances via telehealth, and over time states have adjusted their guidelines to allow physicians to prescribe remotely without requiring the physician conducts a screening in person, instead allowing the necessary screening to take place via telehealth. The year 2022 has seen this trend continue to evolve in states, and for states to continue to adopt specific standards of practice for remote prescribing.

This year has also seen a trend in states to change their telehealth laws to expressly allow telehealth services via audio-only communications rather than requiring providers to use video technology.

Yet another issue highlighted in EBG 2022 Telemental Health Laws update is the number of state Medicaid programs that have expanded their coverage of telehealth services. Some programs have made temporary telehealth reimbursement expansions put in place due to the COVID-19 pandemic permanent. For example, some state Medicaid programs now provide coverage for certain services delivered through audio-only modalities.

Telehealth and COVID-19: Increased Engagement

Prior to the COVID-19 pandemic, upward trends in telehealth use were steady but slow. However, the circumstances surrounding the pandemic, along with the supporting regulatory and policy changes, have significantly reduced barriers to telehealth access and promoted telehealth as a means of delivering acute, chronic, primary healthcare. and specialized. This has resulted in a noticeable increase in patient engagement.

conclusion

Interest in and acceptance of telehealth services continue to grow. More than ever, federal and state lawmakers are under pressure to codify flexibilities granted in response to the COVID-19 pandemic that has boosted access to telehealth services. Meanwhile, the increased use of telehealth has placed greater emphasis on the potential for fraudulent behavior and the need for law enforcement activity. Telehealth providers should continue to monitor evolving federal and state laws, regulations, and policies to take advantage of telehealth opportunities while investing in compliance infrastructure to operate in compliance with applicable laws.

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