The “State” of Telehealth: Utah

Sheppard Mullin Richter & Hampton LLP

Sheppard Mullin Richter & Hampton LLP

On March 2, 2021, Utah Governor, Spencer Cox, signed Senate Bill 41 (“SB41”) into law. The bill, sponsored by State Senator Luz Escamilla, allows coverage for mental health services delivered by telehealth – often referred to as “telemental health” services.  While we have seen many states move to create greater access to telehealth services in efforts to address the current public health crisis (the “Pandemic”), Utah is one of the first states to expand telehealth coverage to address the mental well-being of its citizens.  In a statement to State of Reform, Sen. Escamilla noted that “mental health is becoming a big crisis and in our state we’re seeing an increase in needs, and access has become very limited.”

With the Pandemic intensifying already-high levels of stress, depression, anxiety and substance abuse, a number of states have sought to improve access to mental health services through the use of telemedicine. Utah’s bill will require that the state’s Medicaid program and commercial health plans reimburse providers “at a commercially reasonable rate” for “medically necessary” mental telehealth services, provided that these services are also provided in-person and that services meet the appropriate standard of care.

While some states, like Utah, are moving to make mental telehealth coverage permanent, the federal government, in its Consolidated Appropriations Act of 2020, already allows for Medicare coverage of mental health services, upon satisfaction of certain restrictions, such as, requiring that the provider and patient have met in person within the prior six months and continue to meet in person at regular intervals.

Other states have responded by mandating strict payment parity for telehealth services, requiring reimbursement for telehealth services at the same rate as in-person visits, see for example our March 5, 2021 blog post, The “State” of Telehealth: Virginia, discussing payment parity in Virginia. Utah, however, joins the few states that allow the provider and payer to set rates for telehealth care services, provided that such rates are “commercially reasonable”.

SB41 also prevents payers from imposing any originating site, geographic or distance-based restrictions on connected health reimbursement, providing wider access for Utah citizens seeking mental health services. “The state moved, since last session, to be more practical with telehealth — it’s working well. Now, we’re bringing this telehealth component to mental health,” stated Escamilla. SB41 aims to directly address the growing concern of the mental wellness amongst Utah citizens.

Supporters of SB41 are attracted to the “commercially reasonable rate” for telehealth services introduced in the bill. Many believe that payment parity laws should not prevent payors and providers from negotiating for different reimbursement rates for telehealth vs. in-person services, so long as such negotiations are truly voluntary by the provider and not forced upon them.

Utah joins the roster of states creating permanent legislation for telehealth services following the Pandemic. We will continue to monitor the expansion of telehealth services in the state of Utah, and other states across the nation in accordance with our “State” of Telehealth” series.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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