Since 2016, Epstein Becker Green (EBG) attorneys have 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.

We are pleased to once again release our latest update to EBG’s Telemental Health Laws app, an extensive compilation of laws, policies, and other state guidance for practitioners supporting the mental/behavioral health practice disciplines.

2023: Emerging from PHE Flexibilities, Changes Afoot in the States

Since EBG began tracking state telemental health laws in 2016, we have watched the gradual but steady pace of adoption by state professional boards across the mental/behavioral health professions of laws, guidance, and other policies related to the use of telehealth as a modality for providing care. States certainly have not lost their interest in and focus on regulating in this space! In 2023, a key focus by the states has been addressing questions about how to modify existing regulatory infrastructures sustaining the provision of telehealth services to support the continued use of these services in a post-public health emergency (PHE) world. Using pandemic flexibilities and waivers as a basis, states continued movement in 2023 toward making certain PHE-era policies and guidance permanent, illustrating that while states remain committed to supporting the use of telehealth services, regulators also are committed to ensuring these services are provided safely and effectively, and acknowledging that health care professionals need and want a clear regulatory framework within which to operate. Some states took action by replacing pre-PHE telehealth laws entirely, while other states set forth to create brand new parameters and requirements not previously addressed.

May 2023, the official expiration of the PHE, was a significant turning point for states. The telehealth industry scrambled to understand what the post-PHE regulatory environment would look like and, in turn, relied on regulators for guidance and support. At the federal level, passage in December 2022 of the Consolidated Appropriations Act of 2023 ensured an extension of many federal telehealth flexibilities until December 31, 2024, which has provided certain assurances with respect to coverage parameters for providing telehealth services to Medicare beneficiaries (including a continued delay of the initial and periodic in-person visit requirements for telemental health services). Telehealth providers also have benefitted from an extension of the waiver by the U.S. Drug Enforcement Administration regarding the remote prescribing of controlled substances.

What trends emerged in 2023 among the states? EBG’s Telemental Health Laws app is a useful tracking tool for providers to help understand state-by-state changes and developments. In 2023, many states have continued to push the boundaries of existing telehealth policies. Yet, no two states are exactly alike in their approach to defining and regulating telehealth. Rather, individual states continue to take their own unique approaches to creating and refining the legal and regulatory framework through which professionals are expected to operate.

2023: Continued Recognition of the Benefits of Telehealth

In 2023, we have observed how state professional boards are taking a closer look at how to regulate certain specific needs and circumstances related to telehealth-based care models. For example, states have focused significantly on questions around the use of telephones and other audio-only modalities and the question of whether practitioner-patient relationships established solely via these modalities can be considered “valid” telehealth encounters that meet professional standards of care. This is an important consideration for professionals in the mental/behavioral health space, where verbal communication is essential to forming, functioning in, and maintaining practitioner-patient relationships. States also continue to focus on questions around remote prescribing, again wanting to ensure that, despite the greater use of telehealth, prescriptions are still issued only through valid practitioner-patient relationships. Furthermore, 2023 has also seen significant activity by state Medicaid programs and specifically efforts by the states to expand coverage and reimbursement for the types of telehealth-based modalities, providers, and services that can effectively serve the Medicaid populations in these states.

2023: More Focus on Telefraud and Enforcement

As was the case throughout 2022, efforts have continued in 2023 by the U.S. Department of Justice (DOJ) and the U.S. Department of Health and Human Services’ Office of Inspector General (OIG) to identify and prosecute “telefraud” schemes. In June 2023, the DOJ announced the agency’s latest takedown that resulted in criminal charges against 78 defendants for alleged participation in health care fraud and opioid abuse schemes resulting in more than $2.5 billion in alleged fraud. The DOJ confirmed that as part of the June 2023 takedown, charges against 11 of the defendants were filed in connection with the submission of more than $2 billion in fraudulent claims resulting from telemedicine-related schemes.

While the OIG did not release any new guidance in 2023 along the lines of what the agency published in 2022, there is still undoubtedly a focus by the OIG on telehealth. As of November 2023, current open items in the OIG Work Plan include ongoing work on audits related to the use of telehealth for the provision of opioid-use disorder treatment services and the provision of home health services, as well as examination of claims and other data related to the general use of telehealth services by Medicare Part B beneficiaries and telehealth-related expansion efforts by state Medicaid programs during the PHE.

Ongoing enforcement actions and program integrity activities at the federal level illustrate that providers of telehealth services must remain vigilant about tracking and ensuring compliance with the applicable legal requirements related to providing telehealth services from both a policy and operations perspective. The priorities of the DOJ and OIG should also motivate telehealth providers to continue prioritizing the development and integration of robust operational compliance infrastructures. Providers should expect to see continued efforts at both the federal and state levels with respect to enforcement and likely coordination between federal and state regulators on these issues.

2023 Trends: General Telemental/Telebehavioral Provisions Across the States

With so much variation across states in the legislative and regulatory priorities, it can be difficult to spot the patterns and trends, but some always emerge, and 2023 is no exception in this regard. Following historical trends, much of the state-level regulatory guidance on telehealth services continues to focus on physician-provided services. However, state boards regulating other types of professionals have also continued efforts to develop comparable parameters and guidance, especially for mental/behavioral health professionals, such as psychologists, social workers, counselors, and therapists.

Across many of the health professions, interstate compacts have persisted as the most meaningful approach by states to address challenges associated with professional cross-state practice. While all states require physicians and other health care professionals to hold valid licenses to practice that have been issued by the state’s relevant professional boards, interstate compacts have allowed specific types of professionals to engage in cross-state practice provided they hold a license in good standing in their home state. EBG’s 2023 Telemental Health Laws update highlights the ongoing efforts by states to join one or more of the professional licensure compacts. As of November 2023:

• 37 states, the District of Columbia, and the territory of Guam are members of the Interstate Medical Licensure Compact (for physicians);
• 41 states have enacted the Nurse Licensure Compact (for registered nurses and licensed practical nurses);
• 40 states have enacted the Psychology Interjurisdictional Compact (PSYPACT);
• 30 states have enacted the Counseling Compact, and applications for Counseling Compact privileges to practice are expected to open in 2024; and
• two states have enacted the APRN Compact, which only goes into effect once seven states have enacted the legislation. Notably, the number of states has not changed since last year.

Another continuing trend in 2023 has been states creating exceptions to their professional licensure requirements for specific types of professionals and specific circumstances where cross-state practice may help to support pre-existing relationships between professionals and their existing patients. This is a long-standing challenge and regulatory consideration for professionals in the mental/behavioral health space, and the exceptions are to help support their patients who travel and spend time outside their home states for school and other temporary travel reasons. Here are some examples of exceptions:

• Alabama allows physicians licensed in other states to provide services to patients in Alabama without a license on an irregular or infrequent basis, defined as less than 10 days per calendar year or 10 patients per calendar year.
• Washington State created an exception available to patients seeking second opinions from out-of-state specialty providers, such as cancer centers, or accessing providers in their home state while temporarily traveling within Washington State for the intended purpose of ensuring continuity of care.
• Other states have created exceptions through telehealth registration processes that allow out-of-state professionals to operate via telehealth by completing a registration with the state’s professional boards (where available), agreeing to certain terms and conditions, and paying a registration fee. An example of a state with such an out-of-state registration process is Florida.

Another important trend among states in 2023 has been the evolution of guidance on remote prescribing practices. Generally, many states have gradually allowed licensed physicians (and other professionals for whom prescribing is within their scope of practice) to prescribe non-controlled substances via telehealth. Over time, states adjusted this guidance to permit these professionals to prescribe remotely without requiring that the provider conduct a prior in-person examination, allowing instead for the necessary examination to occur via telehealth. Although the in-person examination requirements imposed by states have become more flexible and accepting of telehealth, states have maintained expectations that these encounters meet the standards set by states and their professional boards regarding appropriate clinical standards of care. In 2023, continued activity in states has focused on creating more specific practice standards for remote prescribing. Often, states maintain two separate policies, one addressing non-controlled substances and a separate one addressing controlled substances (and often deferring in this latter instance to the federal standards set by the Controlled Substances Act). A related trend that has continued in 2023 is states creating remote prescribing policies that are specific to certain types of treatment, such as substance use disorder.

Conclusions

Telehealth providers will invariably face certain legal and regulatory complexities because of the end of the PHE, so it remains important that providers track the evolution of state laws, policies, and other guidance to ensure operations remain compliant with the changing standards being set by states. At the same time, the increased use of telehealth has put a much greater focus on the potential for fraudulent behavior and the need for enforcement activity. For this reason, telehealth providers also have an ongoing responsibility to make investments in compliance infrastructures to operate in accordance with applicable laws.

[View source.]