States Continue to Expand Regulations to Support Access to Telemental Health

A 2022 report from law firm Epstein Becker Green (EBG) shows that an increase in the global prevalence of anxiety and depression is accompanied by requests for more mental health assistance, ultimately leading to states sustaining and widening regulatory flexibilities to expand telehealth services.

EBG, a national law firm, has released its Telemental Health Laws report annually since 2016. It covers the evolution of telemental healthcare and the actions telehealth providers need to take to comply with regulations.

In the 2022 update to the report, EBG highlighted an increase in regulatory flexibilities, leading to a spike in telehealth use for mental and behavioral healthcare.

In 2022, there was a 25 percent increase in the global prevalence of anxiety and depression, which led the Biden administration to direct more attention and investments toward access to mental health services, the press release noted. This included the $1.5 trillion Consolidated Appropriations Act of 2022, which expanded Medicare coverage of telemedicine practices.

“As legislators began to address regulations heavily impacted by COVID-19, the United States also faced the demand for more accessible mental health services,” said Amy Lerman, a member of the firm in EBG’s Health Care and Life Sciences practice, in the press release. “The heightened importance of telemental health services calls for more flexibility and expanded access. That call was answered in 2022, and now the industry must ensure that services maintain quality and compliance for real change to occur.”

The report detailed how telemental health services became more accessible across states in 2022. States broadened telemental health coverage under state Medicaid programs, joined interstate professional licensure compacts, and expanded requirements for remote prescribing.

"Generally and gradually, most states have allowed licensed physicians to prescribe non-controlled substances via telehealth and, over time, states have adjusted their guidance to permit physicians to prescribe remotely without requiring that the physician conduct a prior in-person examination, allowing instead for the necessary examination to occur via telehealth," the report states.

Further, some state Medicaid programs made COVID-19 flexibilities permanent. 

The report also detailed the federal enforcement that continues to surround telehealth fraud. For example, in 2022, the Department of Justice issued criminal charges against 36 defendants across the US for over $1.2 billion in alleged telemedicine-related fraudulent schemes.

The report concluded with recommendations for telehealth providers for 2023, including keeping an eye on coding and billing for telehealth, as well as continuing to focus on regulatory compliance and evolving laws.

Several organizations around the country have been urging the federal government to make permanent regulations that allow for expanded telehealth use.

For example, in September, 375 stakeholders signed a letter to the US Senate asking that expanded telehealth access be solidified for two years after the end of the COVID-19 emergency declaration as senators consider how best to permanently extend flexibilities.

Composed by the American Telemedicine Association (ATA) and the ATA Action, the letter included requests to remove initial in-person requirements for telemental health and eliminate restrictions on the location of providers and patients who participate in telehealth.