Telemental and Telebehavioral Health Considerations: A 50-State Analysis on the Development of Telehealth Policy

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Amy F. Lerman
Daniel Kim
Francesca R. Ozinal
Theresa E. Thompson

Abstract

Contemporary healthcare delivery models have a patient-centered approach, a focus on integrating the various types of services patients need, an emphasis on interdisciplinary treatment teams, and a commitment to adopting innovative technologies. Increasing utilization of telehealth technologies has helped foster these contemporary service delivery models by improving access to healthcare services, leveraging the expertise of specialty providers to the point-of-service, and enhancing opportunities for healthcare professional and consumer education. As such, telehealth delivery models have become mainstream and viable solution for healthcare providers, physicians, and employers. According to an August 2016 report from the U.S. Department of Health and Human Services, an estimated 61% of healthcare institutions use some form of telehealth technology, and between 40% and 50% of all hospitals in the United States employ some form of telehealth technology. 1Following suit, the provision of telebehavioral or “telemental” health services continue to trend upward, as behavioral health providers become more interested in utilizing telehealth platforms to connect with their patients. Mental illness affects millions of individuals in the U.S., from all walks of life and across all age groups, contributing significantly to the burdens of disease.2 While mental illness can be recurrent and serious, often it is treatable, provided affected individuals have access to necessary resources. Patients surveyed regarding their use of telemental health services express consistent and affirmative beliefs that telemental health services provide positive benefits. Surveys report little or no difference in levels of patient satisfaction compared to face-to-face interactions between patients and their behavioral health providers.3,4 As states continue to support and expand the exciting benefits telehealth technologies and services offer, our legislators, healthcare systems, and regulatory bodies are being tasked with working together to navigate the numerous legal and regulatory issues that come with it. Epstein Becker Green (“EBG”) recently released an Appendix to its “50-State Survey of Telemental/Telebehavioral Health (2016),” with new and updated analysis on the laws, regulations, and regulatory policies affecting the practice of telemental/telebehavioral health in all 50 states and the District of Columbia.5 The 2017 Appendix reflects the incredibly active legislative efforts in most states with respect to the provision of telehealth services. In fact, only two states, Connecticut and Massachusetts, have not made changes to their legal and regulatory framework since the 2016 Survey. This suggests a lot of policy activity among states to regulate and provide meaningful guidance to telehealth providers.

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Author Biographies

Amy F. Lerman

AMY F. LERMAN is a Member of the Firm in the Health Care and Life Sciences practice, in the Washington, DC, office of Epstein Becker Green. Ms. Lerman focuses her practice on a variety of regulatory and transactional health care matters, including telehealth and telemedicine, government investigations, corporate compliance, durable medical equipment, and Medicare program integrity auditing and monitoring. She represents a variety of health care providers and organizations, as well as investors and other financial institutions that invest in or support the health care industry.

Daniel Kim

DANIEL KIM* is a Law Clerk – Admission Pending – in the Health Care and Life Sciences practice, in the Washington, DC, office of Epstein Becker Green. He will be focusing his practice on FDA marketing approval of medical devices and pharmaceutical, reimbursement and compliance matters affecting health care medical device manufacturers, telehealth and telemedicine, HIPAA privacy and security, regulatory health care due diligence, and compliance issues.

Francesca R. Ozinal

FRANCESCA R. OZINAL is an Associate in the Health Care and Life Sciences practice, in the Washington, DC, office of Epstein Becker Green. She focuses her practice on such areas as fraud and abuse, telehealth, federal and state regulatory and compliance issues affecting a broad range of health care stakeholders, litigation, government investigations, and due diligence.

Theresa E. Thompson

THERESA E. THOMPSON is an Associate in the Health Care and Life Sciences practice, in the Washington, DC, office of Epstein Becker Green. Her practice focuses on such areas as telemedicine, fraud and abuse, government investigations, litigation, and compliance.