Telehealth and Telemedicine

Throughout the campaign season and the first months of Donald Trump’s presidency, the current Administration has voiced a commitment to furthering telehealth advancement. For example, during the campaign, then-candidate Trump emphasized the importance of telehealth tools in reforming the U.S. Department of Veterans Affairs (“VA”). More recently, both U.S. Department of Health and Human Services Secretary Tom Price and Centers for Medicare and Medicaid Services Administrator Seema Verma stated in their confirmation hearings that they were interested in promoting the use of telehealth technology. On Thursday, August 3, 2017, VA Secretary Dr. David Shulkin, joined by President Trump, took steps towards fulfilling this commitment, announcing three telehealth initiatives aimed at improving access to and quality of care for veterans.

First is a forthcoming regulation that Secretary Shulkin referred to as “Anywhere to Anywhere VA Healthcare.” Under current law, VA practitioners may provide in-person health care services in any state, as long as they are licensed in one state, without needing additional professional licensure. This proposed regulation would expand the ability to engage in multistate practice to VA practitioners who are providing telehealth services. Anywhere to Anywhere VA Healthcare, if enacted, would authorize VA practitioners to serve veterans using telehealth technologies, regardless of the locations of the provider or the patient, as long as the VA practitioner maintains a valid professional license in good standing in at least one state.

The second telehealth initiative discussed during last week’s announcement is an app titled “VA Video Connect” that allows veterans to connect with health care providers via secure and web-enabled video on their smartphones or computers. Currently, VA Video Connect is being used by 300 VA providers in 67 hospitals, and the VA intends to roll-out the app nationwide over the course of the next year. The third telehealth initiative discussed is another app, titled “Veteran Appointment Request App” or “VAR App.” The VAR App enables veterans to use their smartphones, tablets, or computers to schedule or modify appointments at VA facilities. The VAR App is currently available at some VA locations, but now the VA has planned a nationwide roll-out.

Last week’s announcement of these telehealth-focused initiatives was met with praise from many, including leading telehealth advocacy organizations such as the American Telemedicine Association and Health IT Now. The VA has long been at the forefront of telehealth progress, including being an early adopter of telehealth technology, piloting telehealth programs as early as the 1990s, and pioneering much of the progress being made in telehealth care coordination. As the largest telehealth program in the country, the VA continues to be a leader in the telehealth space. Last year alone, 700,000 veterans received telehealth services through the VA. For more information about the VA Telehealth Program, visit VA Telehealth Services.

Updates to OIG FY 2017 Work Plan

The United States Department of Health and Human Services (“HHS”) Office of the Inspector General (“OIG”) recently updated its FY 2017 Work Plan. Traditionally, OIG’s annual Work Plan has given health care providers a preview of OIG’s enforcement priorities. With the OIG now making updates to its Work Plan on a monthly basis, providers stand to gain even more insight into how the focus of OIG is constantly shifting in order to assist in the identification of significant compliance risk areas.

In this most recent set of updates to the FY 2017 Work Plan, OIG announced that it will conduct a review of Medicare claims paid for telehealth services in FY 2017. Specifically, OIG is interested in reviewing claims for telehealth services provided at “distant sites” (i.e., the location of the provider of the telehealth service) that do not correspond with claims from an “originating site” (i.e., the location of the patient). By undertaking this review, presumably OIG seeks to verify that providers of telehealth services are: (1) appropriately rendering these services to Medicare beneficiaries based on current reimbursement rules under Medicare for provision of telehealth services (i.e., the beneficiary is at a valid originating site when receiving the telehealth service, which under current Medicare rules does not include a beneficiary’s home), and (2) not submitting fraudulent claims for telehealth services (i.e., services delivered outside of Medicare’s coverage and reimbursement scope). OIG’s review of these claims may demonstrate the need to update Medicare’s outdated coverage and reimbursement provisions for telehealth services.

Medicare’s Current Coverage of and Reimbursement for Telehealth Services

Compared to ever-expanding coverage of and reimbursement for telehealth services in individual states, as well as the private insurance market, Medicare Part B beneficiaries currently have limited access to telehealth services due to the following restrictions:

  1. Medicare beneficiaries only have access to telehealth services transmitted using an “interactive 2-way telecommunications system (with real-time audio and video).” This definition excludes three frequently used modalities used by providers to deliver telehealth services: (a) store-and-forward technology (with the limited exceptions of CMS demonstration projects ongoing in Alaska and Hawaii), (b) remote patient monitoring (“RPM”) services, and (c) mobile health / wearable technology.
  2. Medicare confines telehealth coverage to “rural health professional shortage area[s].” This geographic restriction is federally defined.
  3. Medicare beneficiaries only may receive telehealth services while physically situated at one of eight “originating site[s],” none of which include the patient’s home—those living in geographically-restricted areas are still obligated to access a medical originating site in order to activate Medicare coverage.
  4. Only eight types of practitioners may deliver the telehealth services to Medicare beneficiaries, and must do so from a qualified “distant site.”
  5. The Centers for Medicare & Medicaid Services (“CMS”) publishes a limited number of HCPCS and CPT codes for telehealth services, and while this universe of codes has gradually increased over time, most of these codes are geared towards reimbursement for behavioral health services delivered through telehealth.

Current Legislative Efforts in Congress

In recent years, federal lawmakers have been working to lessen the constraints on Medicare Part B coverage of and reimbursement for telehealth services.

In August 2016, HHS published a Report to Congress on “E-Health and Telemedicine.” In this report, HHS expressed its support for telehealth expansion and its importance in the health care industry: “[T]elehealth holds promise as a means of increasing access to care and improving health outcomes.” Congress has seemed to take note. In the 2017–2018 legislative session, four key bills have been introduced that, if passed, would improve coverage of and reimbursement for telehealth services under Medicare:

  • The CHRONIC Care Act of 2017 (S. 870) would make four key changes to Medicare: (1) provide coverage and reimbursement for RPM delivery of home kidney dialysis assessments; (2) provide nationwide coverage and reimbursement for “telestroke” consultations (not just those that occur in rural hospitals or other originating sites); (3) eliminate the geographic restriction of an originating site for Accountable Care Organization (“ACO”) beneficiaries, thus allowing patients to receive home telehealth services; and (4) allow Medicare Advantage plans to offer telehealth benefits in annual bid amounts, instead of using rebate dollars to pay for telehealth as a “supplemental service.” The CHRONIC Care Act recently received a favorable, budget neutral Congressional Budget Office (“CBO”) score—alleviating a traditionally difficult roadblock for telehealth legislation.
  • The Medicare Telehealth Parity Act of 2017 (H.R. 2550) would provide an incremental expansion of coverage for telehealth services under Medicare by expanding the number of acceptable geographic locations for telehealth coverage under three “phases.”
  • The CONNECT for Health Act of 2017 (H.R. 2556) includes provisions that would expand coverage and reimbursement of telehealth services for (1) ACO enrollees, (2) individuals receiving kidney dialysis therapy, (3) stroke patients, and (4) RPM services for beneficiaries needing chronic care and would lift restrictions on telehealth for mental health services.
  • The HEART Act (H.R. 2291) aims to increase Medicare coverage of telehealth services, including coverage and payment for store-and-forward services delivered to “any telehealth services that are furnished from a distant site, or to an originating site, that is a critical access hospital . . ., a rural health clinic . . ., or a sole community hospital” and for home-based monitoring of congestive heart failure and chronic obstructive pulmonary disease. These three bills have not yet been scored by the CBO.

While it remains to be seen whether any of these bills (or any others) will become law, the level of legislative activity still is promising—and particularly so in conjunction with HHS’s support for telehealth—that expansion of telehealth coverage and reimbursement under Medicare can make greater strides toward improving access to these services for Medicare beneficiaries.

Added to this, OIG’s recent updates to the FY 2017 Work Plan to include a review of telehealth reimbursement claims under Medicare may further accelerate this process if OIG identifies any pertinent potential risk areas related to provision of telehealth services.

This post was written with assistance from Matthew Sprankle, a 2017 Summer Associate at Epstein Becker Green.

Private payer parity laws generally require private insurers and health maintenance organizations to cover, and in some cases also reimburse, for the provision of telehealth services in the same manner and at the same level as comparable in-person services. These laws are enacted at the state level, creating a complicated framework within which insurers must operate. At this point, most states have implemented some form of private payer parity law, although the specifics of each state’s laws vary. One of the most common is a rule such as Montana’s, which requires insurers to offer coverage for health care services provided by a health care provider by means of telemedicine if the services are otherwise covered by the plan. Some states, like Iowa, only mandate parity within their Medicaid programs without extending the mandate to private payers. Other states only require parity for certain types of services, like mental health services in Alaska. Lastly, Illinois and Massachusetts, require parity only when insurers opt to provide telehealth services.

In the 2017 legislative session thus far, two more states have enacted private payer parity laws. In April, North Dakota enacted its law, SB 2052, which prohibits policies that provide health benefits coverage to be delivered, issued, executed, or renewed that do not provide coverage for health services delivered by means of telehealth. Although SB 2052 does not require reimbursement for telehealth to match in-person services, it does permit establishing reimbursement for telehealth services through negotiations conducted by the insurer with the health services providers in the same manner as used for in-person services. At the end of June, New Jersey passed its law, requiring health benefits plans to “provide coverage and payment for health care services delivered to a covered person through telemedicine or telehealth, on the same basis as, and at a provider reimbursement rate that does not exceed the provider reimbursement rate that is applicable, when the services are delivered through in-person contact and consultation in New Jersey.” Pennsylvania’s bill, prohibiting a health insurance policy or ancillary service plan from excluding a health care service for coverage solely because the service is provided through telemedicine, is still pending.

Recent efforts in other states to enact telehealth private payer parity laws have not been as successful. A number of parity bills died in the last legislative session, including in Iowa, Kansas, Idaho, and Massachusetts. A bill in Florida that would have created tax credit for health insurers and health maintenance organizations that cover telehealth services also failed. At present, 15 states do not yet mandate private payers to cover and reimburse telehealth services at the same level as in-person health care services. In addition to the aforementioned, Alabama, Illinois, North Carolina, Ohio, South Carolina, South Dakota, Utah, Wisconsin, West Virginia, and Wyoming all lack such laws or regulations.

We continue to track the progress of bills in state and federal legislatures. If you have questions on coverage and reimbursement for telehealth services, please reach out to Epstein Becker Green’s Telehealth & Telemedicine team to learn more about our capabilities. Additionally, we are in the process of updating our state survey on telemental health laws. Check back soon for additional details.

Telehealth continues to be a hot topic of state and federal legislatures. Texas, for example, recently joined the rest of the states in no longer requiring initial in-person visits before being able to provide telehealth services.

The Texas legislature enacted the major telehealth bill SB 1107 on May 19, 2017, and the governor signed the bill into law shortly thereafter on May 27, 2017. As reported in our prior post, Texas had considered that, if passed, this telehealth bill would allow patient-physician relationships to be established via telemedicine without requiring an initial in-person visit. Prior guidance from Texas Medical Board required an in-person physician-patient interaction before a visit via telehealth, specifically in prescribing medication. The Texas Medical Board’s telemedicine FAQs are being revised as a result of this enacted law.

This law’s enactment would also effectively bring to an end the years long battle between a telehealth provider and Texas Medical Board. In 2015, a telehealth provider brought legal action against the Texas Medical Board and its telehealth restrictions. This litigation was twice stayed to allow for such a resolution to occur.

Additionally, the Federal Trade Commission was investigating the Texas Medical Board for possible antitrust violations due to its guidance that restricted the practice of telemedicine and telehealth in Texas. However, on June 21, 2017, the Federal Trade Commission announced that it will close its investigation into the Texas Medical Board as a result of the Texas legislatures enacting the law that overrode the board’s telehealth restrictions.

This Texas telehealth law is important because of the large telehealth market that Texas represents. The passage of this law removes the hurdle to allow telehealth providers to start operating or expand operations in the state with the second largest population in the nation.

We continue to track the progress of bills in state and federal legislatures. If you have questions on the provision of telehealth services- in Texas or any other state- please reach out to Epstein Becker Green’s Telehealth & Telemedicine team to learn more about our capabilities. Additionally, we are in the process of updating our state survey on telemental health laws. Check back soon for additional details.

At the American Telemedicine Association’s (“ATA”) recent conference in Orlando, a panel of strategic investors discussed the growth of the telehealth industry. The panel delved into topics such as the driving forces for telehealth and which telehealth programs they believe have the ability to gain traction across a broad universe of stakeholders. Based on firsthand experience with deals that have worked, and those that have not, the panel shared their insights and discussed lessons learned, which in turn provided listeners with interesting insight regarding the future of the telehealth industry.

During the conference and prior to the panel session, the panelists took time to wander through the vast ATA exhibit hall, where numerous telehealth providers and platforms showcased their offerings. The investors assessed (and discussed during the panel) three distinct models: (1) “doctors on carts” (2) software delivering a “virtual care” experience, and (3) gadgets. The panelists identified a need for differentiation in the market and recommended greater development of telehealth platforms that are additive to solutions that already exist, as well as encouraging the industry to start moving away from standalone technology. Other highlights from this interesting panel discussion follow below.

Challenges facing the telehealth industry:

According to the panel, telehealth remains a huge business and investment opportunity, but one that is still largely aspirational. One panelist described telehealth as a three-legged stool – technology, operations, and provider networks – and said challenges must be carefully evaluated at each point. In particular, from the technology side, investors must consider how potential telehealth technologies fit into existing operational structures. For example, telehealth platforms and technology targeting the post-acute space face particular hurdles because of basic infrastructure upgrades needed in many post-acute settings.

Not surprisingly, the panel identified reimbursement as one of the greatest challenges facing the telehealth industry. General sentiment among the panel members was that until utilization of telehealth increases, the reimbursement landscape for telehealth services will not meaningfully change. Other challenges to greater utilization of telehealth services include a lack of awareness of telehealth’s capabilities “in the moment” when care is being provided, unfamiliarity with telehealth capabilities by comparatively sicker and older populations (for whom utilization of telehealth might be extremely beneficial), and a perpetual perception that the telehealth industry is “stuck in pilot mode.” Health care providers have the ability to change the way care is delivered by utilizing telehealth technology; however, according to the panelists, stakeholders must continue working to raise awareness of telehealth’s benefits for both patients and providers.

What story should telehealth stakeholders tell to empower providers and payers to adopt telehealth services?

The panelists discussed the importance of “knowing the audience” to whom stakeholders are attempting to sell telehealth business ideas, particularly with regard to potential providers of and payers for these services. Demonstrating the strategic value-add that use of telehealth technology provides is key to the equation.

With respect to providers, access to care is core to their mission, and as such, stakeholders should focus on examples of telehealth services or platforms that increase patient access to care. One successful strategy may be using telehealth technology to meet patients where they want to be met – i.e., in the home – and demonstrating that the technology can deliver the needed care in a lower cost setting. With respect to payers, some believe that any increased volume of telehealth services will drive prices up, and as such, stakeholders need to have their ROI case down in order to demonstrate to payers that telehealth will not just drive volume, but rather will reduce costs and/or improve health outcomes. Notably, several of the panelists recommended that those looking to sell telehealth services and/or platforms focus most heavily on potential opportunities for partnership and collaboration.

How should telehealth providers and companies work to raise capital?

The panelists advised that telehealth providers and companies “do their homework” regarding what their technology can do to help and to enhance an existing health system, as a means toward raising capital. Telehealth companies should be prepared to pursue strategic partnerships that would allow a potential health system partner to seamlessly integrate the telehealth services and/or platform into an existing system and/or platform. Companies should push a market-centric story. The panelists advised against companies pushing the message that their telehealth technology or platform will be a “win-win” for everyone; rather, companies should be prepared to explain the losers (i.e., the competing technologies and platforms that have not worked) and how their technology and/or platform will be able to navigate around that. Companies should acknowledge there is tremendous competition in the telehealth market and should resist saying their technology or platform will be the next WhatsApp of the health care industry.

Should telehealth providers and companies focus on the patient or consumer experience?

Some in the telehealth industry have targeted consumers (i.e., tech-savvy millennials who want the convenience of virtual care) as a potential key driver of growth. However, the panelists advised that a focus on consumers may not be beneficial to the telehealth industry. Interestingly, some panelists recommended that the telehealth industry actually pursue the sickest patients who consume the most health care services and, in turn, drive health care costs. The panelists described early but ongoing collaboration between software engineers and clinicians, in pursuit of looking for the right types of patients to target within specialties such as dermatology, wound care, and behavioral health. The panelists felt there is a compelling ROI case with regard to bringing telehealth to these populations.

How will the telehealth industry evolve and what are the most promising investment opportunities?

When asked to look ahead to what the future may hold, the panelists recommended thinking less of telehealth as a technology and more about how telehealth integrates into consumer solutions. The future of telehealth should focus on how tools enable us to change the delivery system and sites of service, so that many health care services can be shifted from being provided at “brick and mortar” sites like hospitals, to being provided at more convenient and less expensive sites of service such as patient’s homes, cars, on the phone, etc. The panelists discussed that another significant evolution in the telehealth space is providers that are building their own telehealth solutions in-house. Finally, the panelists reiterated that greater development of technology and platforms that manage particular high utilization populations, like those with chronic care conditions, also provide growth opportunities. According to the panelists, the major specialty growth areas within telehealth include tele-ICU, tele-stroke, and tele-behavioral health.

Finally, the panelists advised that investors target potential telehealth offerings that are marketed well and that provide a good patient experience, as these tend to be indicators that will convince health plans to sign on. Furthermore, technology and platforms that are easy to use will have the best chance at widespread adoption.

What will the telehealth landscape look like under the Donald J. Trump Administration?

The Trump Administration is likely to drive telehealth advancement in a positive direction. For example, President Trump’s plan to reform the Veteran’s Affairs Department includes improved patient care through the use of telehealth technology. There are also some indications that the newly confirmed Secretary of the Department of Health and Human Services (“HHS”), Tom Price, is “telehealth friendly.” Recently, during the congressional confirmation hearings, Price mentioned a tele-stroke program in Georgia as a model of success, and he said he thought there were many things that can be done to mirror that kind of technological expansion. Price also said he is interested in promoting telehealth because it “holds great promise, particularly for rural areas experiencing physician shortages and for patients with limited mobility.” Moreover, Trump’s pick to be the next Administrator of the Centers for Medicare and Medicaid Services (“CMS”), Seema Verma, said in her recent congressional confirmation hearings that she wants to work with Congress to promote the use of telehealth technology. Specifically, she said, “telehealth can provide innovative means of making healthcare more flexible and patient-centric. Innovation within the telehealth space could help to expand access within rural and underserved areas.” Finally, Maureen Ohlhausen, the recently appointed acting chair of the Federal Trade Commission (“FTC”), has in the past spoken favorably regarding the potential of telehealth and has said that the current professional licensure system needs to be rethought given telehealth technology’s potential.

Despite the current focus in Congress on repealing and replacing the Affordable Care Act, telehealth legislation continues to gain traction and bipartisan support on the Hill. In February, a bipartisan group of 37 Senators sent a letter to Tom Price encouraging HHS to support telehealth and remote patient monitoring. Congress also has embraced telehealth advancement with a consistent stream of proposed legislation seeking to enhance the provision of telehealth services. Most recently, Rep. Joyce Beatty (OH-03) and Rep. Morgan Griffith (VA-09) reintroduced the Furthering Access to Stroke Telemedicine (“FAST”) Act that would expand access to stroke telemedicine (also called “telestroke”) treatment in Medicare. Congress also recently introduced HR 766 which would establish a pilot program to expand telehealth options under the Medicare program for individuals living in public housing. Additionally, Congress is poised to consider at least two bipartisan pieces of legislation focused on telehealth. The first is known as the Creating High-Quality Results and Outcomes Necessary to Improve Chronic (“CHRONIC”) Care Act of 2016, which seeks to modernize Medicare payment policies focused on improving the management and treatment of chronic diseases using telehealth technologies. The second is known as the Creating Opportunities Now for Necessary and Effective Care Technologies (“CONNECT”) for Health Act, which seeks to mandate Medicare reimbursement for telehealth services (beyond the current, limited reimbursement framework). Finally, Senator Orrin Hatch (R-UT), the Chairperson of the Senate Finance Committee, recently released his “innovation agenda for the 115th Congress” which encourages the promotion of the “internet of things,” greater broadband investment, and increased device-to-device communication and cross-border data flows.

Continue Reading Telehealth Outlook Under the Trump Administration

Texas and Telehealth: New Bill Would Remove Toughest Hurdle For PractitionersIn recent years, Texas has served as ground zero for a number of the most contentious legal battles surrounding telehealth. This week, State Senator Charles Schwertner, the chairman of the Committee on Health and Human Services, submitted a bill signifying progress for telemedicine and telehealth providers looking to practice in the Lone Star State. The bill, S.B. 1107, would remove one of the toughest hurdles for telemedicine and telehealth practitioners – the face-to-face meeting requirement. Providers would be able to provide services to, and establish physician-patient relationships with, Texas residents through either a synchronous audio-visual interaction or via store-and-forward technology and an audio-only interaction, without ever having to meet the patient in real life. The bill would require the practitioner to use the relevant clinical information required to meet the same standard of care as practitioners providing in-person services.

The bill also would mean changes for the policies of the Texas Medical Board. The legislation signifies that the “telepresenter” requirement, mandating the presence of a healthcare professional when a patient initiates a video consultation, would be eliminated. In addition, the Texas Medical Board, along with the Texas Board of Nursing, the Texas Physician Assistant Board, and the Texas State Board of Pharmacy, would be required to adopt rules defining “valid” prescriptions for telemedicine visits. This would supersede the current, and defunct, policy against telemedicine prescribing, although prescribing abortion drugs would still be prohibited.

The new bill follows the stay recently placed on the litigation between the Texas Medical Board and telehealth company Teladoc. The dispute arose in 2015 when the Texas Medical Board ruled that Texas physicians were prohibited from prescribing to patients without a face-to-face visit. In response, Teladoc filed an antitrust suit and obtained an injunction against enforcement of the rule. The Texas Medical Board then revised the rule, requiring a face-to-face evaluation to establish a physician-patient relationship. Teladoc again filed suit and obtained another injunction. Although the Texas Medical Board filed an appeal, it backed down in October 2016 after the U.S. Department of Justice and the Federal Trade Commission expressed support for Teladoc through amicus briefs. The Texas Medical Board and Teladoc are now rumored to be discussing a settlement.

Much of the recent media scrutiny may suggest that Texas has gotten a bad rap when it comes to telehealth. But have recent reports painted an incorrect or unfair picture of telehealth innovation in Texas? The TexLa Telehealth Resource Center (“TexLa TRC”) certainly thinks so.

Recent media attention focused on Texas telehealth innovation suggests Texas is behind the telehealth curve. In a recent report, the Texas Business Association said, “Texas lags behind other states in establishing a supportive regulatory environment for the expansion of these services,” while the American Telemedicine Association ranked Texas as one of the worst states for provision of telehealth services in its May 2015 and January 2016 [1] state report cards. Additionally, the ongoing litigation between Teladoc and the Texas Medical Board (“TMB”) over a rule that requires physicians to see patients face-to-face before providing remote care has been viewed by some as stifling telehealth innovation until the litigation is resolved. Amicus curiae briefs filed in support of Teladoc pertaining to the ongoing litigation, including one filed just last month by the Federal Trade Commission and the Department of Justice, arguing the TMB has engaged in anticompetitive behavior, further bolsters the view that Texas does not support telehealth innovation.

However, the TexLa TRC has a different perspective. Not only is telehealth innovation in Texas not being stifled, but rather, it is growing. The TexLa TRC receives weekly calls from companies and providers who want to stake their claim in the Texas telehealth market. A recent survey reveals there is support in Texas from patients, providers, and employers to increase access to telehealth services throughout the state. According to the TexLa TRC, Texas has sought to promote telehealth innovation for years, and will continue to do so for the foreseeable future. For example, the Children’s Health System of Texas has successfully penetrated the telehealth market in Texas and has plans to expand these services to markets outside of Texas in the near future. The Hospital’s school-based initiative, one of several telehealth services it provides to patients in the community, began in 2013 in just two Dallas-area preschools but already has spread to 57 Dallas-area schools by early 2016 and has plans to continue to expand.

The outlook for telehealth in Texas is positive. During Summer 2016, various telehealth stakeholders including physicians, telehealth industry groups, and insurance companies, met behind closed doors to draft a compromise over how best to deliver healthcare remotely. The TexLa TRC believes these telehealth stakeholders are still working together to find common ground to redraft telehealth language before the Texas legislature meets in January.

[1] Access to the January 2016 report is available by registering for free with the American Telemedicine Association.

Capitol BuildingAs requested by Congress as part of an appropriations bill signed into law late last year, this month, the Department of Health and Human Services (HHS) released a report highlighting its e-health and telemedicine efforts.  The report makes for interesting reading, and while there are no significant surprises in the report, it offers a clear snapshot of some of the agency’s thinking regarding virtual care.

The first thing I noted in the report is the agency’s view that “telehealth holds promise as a means of increasing access to care and improving health outcomes.”  This is important because it has not always been clear whether the agency views telehealth quite in the same favorable way as other stakeholders increasingly do.  The other thing I noted was the agency’s view that the various alternative payment methods currently being tested may facilitate expansion of telehealth.

Among other things, the report details some of the policy challenges faced by telehealth stakeholders:

  • Significant variability in telehealth coverage from one payer to another.
  • State licensure requirements for clinicians and the administrative burden such requirements impose on clinicians.
  • Credentialing and privileging.
  • Gaps in access to affordable broadband.

HHS indicates that many reforms are currently being tested or implemented to address these challenges. For example, in the area of reimbursement, the agency notes that it is currently testing more expansive telehealth coverage through its Next Generation ACO Demonstration, and highlights MACRA’s incentives for physicians to use telehealth.  The report references the agency’s new rule that permits the use of telehealth modalities to provide Medicaid home health services.

The report also provides an overview of telehealth-related federal activity including:

  • The number of telehealth grants administered by HRSA and SAMHSA.
  • The establishment of the Federal Telemedicine Working Group (comprised of 26 agencies and departments such as USDA and the FCC) to facilitate telehealth education and information sharing.
  • ONC developing an inventory of federal telehealth activities.
  • AHRQ providing an evidence map of the available research regarding telehealth.
  • The continued great telehealth work being done within the VA and reasons why that model may not be scalable.

Overall, the report is an illuminating but relatively unsurprising take on agency thinking.  In particular, two nuggets stood out. First, the agency appears to view chronic disease management as a particularly good fit for telehealth.  In recounting that almost half of all adults have at least one chronic illness and that chronic disease accounts for 75 percent of all health expenditures, the report concludes that telehealth “appears to hold particular promise for chronic disease management.” It goes to reason that any expansion of telehealth under Medicare will probably first focus on chronic disease management. Second, HHS signaled the importance of Medicare Advantage in any telehealth expansion effort, by including a proposal in the President’s budget request for FY 2017 to expand the ability of MA organizations to provide telehealth by eliminating otherwise applicable Part B requirements that certain services be provided only in-person.

We are pleased to present our 50-State Survey of Telemental/Telebehavioral Health (2016), published by Telehealth practice at Epstein Becker Green.

Learn more about the survey here and download your complimentary copy here.  See our full announcement below:

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As Cyber-Counseling Booms, Complex Legal and Regulatory Issues Grow;
Survey Breaks New Ground in Tracking Related Laws

WASHINGTON, DC – May 11, 2016 –Epstein Becker Green (EBG), has released a groundbreaking, comprehensive survey on the laws, regulations, and regulatory policies impacting telemental health in all 50 states and the District of Columbia. The “50-State Survey of Telemental/Telebehavioral Health (2016)” details the rapid growth of telemental health (mental health care delivered via interactive audio or video, computer programs, or mobile applications) and the increasingly complex legal issues associated with this trend.

Telemental/telebehavioral Health Survey
While other telehealth studies exist, this survey focuses solely on the remote delivery of behavioral health care. The survey was spearheaded by René Y. Quashie and Amy F. Lerman, both EBG Senior Counsel in the Health Care and Life Sciences practice in the firm’s Washington, DC, office.

“As telemental health care gains in popularity, it gives rise to a number of significant legal and regulatory issues, including privacy and security, follow-up care, emergency care, treatment of minors, and reimbursement, among other things,” said Quashie. “While some federal laws and regulations (such as HIPAA) apply, most of the issues involve state law, which has resulted in an inconsistent patchwork of laws and regulations that vary widely by state. And there are a number of states that don’t address telemental health specifically in their laws.”

Bridging the Care Gap

The survey begins with a report on the state of telemental health in 2016, highlighting its growing legitimacy (and acceptance by payers) as a treatment option, the barriers to delivery that persist, the high costs of care and prescription drugs, and insurance reimbursement parity issues.

Mental health care lends itself particularly well to remote delivery, since the provider usually need not lay hands on the patient to provide care. In addition, this method helps bridge the gap between the large numbers of Americans (about 60 million) experiencing mental illness and the significant shortage of qualified mental health care providers. Only 40 percent of Americans with mental illness report receiving treatment, and there is one mental health care provider for every 790 individuals.

The EBG survey also reports that new technologies are driving the boom in telemental health, with a significant increase in mobile applications related to mental health (now almost 6 percent of all mobile health apps) and another 11 percent devoted to stress management. There is also a growing number of companies providing “text therapy” services, which allow users, for a flat-rate fee, to text chat with any number of licensed mental health providers.

“Accessing mental health care is a significant challenge for most Americans, with wait times to see a provider measured in weeks and months, rather than days. In addition to long wait times, distance, cost, and stigma present significant barriers to getting care. These are all challenges that telemedicine is uniquely equipped to solve,” said Dr. Ian Tong, Chief Medical Officer at Doctor On Demand.

Deep Dive into Legal Issues

The survey provides a detailed state-by-state analysis of legal issues related to telemental health, such as:

  • Definitions of “telehealth” or “telemedicine”
  • Licensure requirements
  • Governing bodies
  • Reimbursement and coverage issues
  • The establishment of the provider-patient relationship
  • Provider prescribing authority
  • Accepted modalities for delivery (e.g., telephone, video) to meet standards of care

There is also comprehensive data tracking telehealth legislation and rulemaking in progress for each state. Highlights include the following:

  • Psychiatrists, as practicing physicians, must comply with all the obligations that apply to physicians practicing telehealth generally. Very few states exempt mental health from physician requirements despite the fact that many psychiatrists never lay hands on patients. Ironically, Texas is one of the few states that explicitly carves out mental health services from other telehealth requirements.
  • In New York, psychologists may engage in telepractice so long as, among other things, they obtain informed consent from patients describing the benefits and risks of telepractice, and they conduct an initial assessment of each client to determine whether telepractice is appropriate.
  • In Delaware, an individual practicing “telepsychology” must conduct a risk-benefit analysis and document findings specific to issues such as whether a patient’s presenting problems and apparent condition are consistent with the use of telepsychology to the patient’s benefit, and whether the patient has sufficient knowledge and skills in the use of technology involved in rendering the service or can use a personal aid or assistive device to benefit from the service.
  • Kansas requires psychologists and social workers providing telemental health services to obtain the informed consent of the patient before services are provided.
  • In Maryland, physicians (psychiatrists) are required to develop a procedure to prevent access to data by unauthorized persons through password protection, encryption, or other means and to create a policy on how soon an individual can expect a response from the physician to questions or other requests included in transmission.

“As telemental health continues to grow and evolve, it will increasingly be viewed as a viable solution by clinicians, payers, and policymakers,” said Lerman. “At the same time, legal and regulatory issues will continue to proliferate. The survey breaks new ground for anyone navigating this multifaceted legal landscape.”

In addition to Mr. Quashie and Ms. Lerman, EBG attorneys Jonathan K. Hoerner, Bonnie I. Scott, James S. Tam, and Meghan F. Weinberg contributed to the survey.

Click here to download the survey.

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About Epstein Becker Green

Epstein Becker & Green, P.C., is a national law firm with a primary focus on health care and life sciences; employment, labor, and workforce management; and litigation and business disputes. Founded in 1973 as an industry-focused firm, Epstein Becker Green has decades of experience serving clients in health care, financial services, retail, hospitality, and technology, among other industries, representing entities from startups to Fortune 100 companies. Operating in offices throughout the U.S. and supporting clients in the U.S. and abroad, the firm’s attorneys are committed to uncompromising client service and legal excellence. For more information, visit www.ebglaw.com.