The following is a guest article by Michael Levinson, M.D., J.D., Partner at Berger Singerman LLP
Telehealth has revolutionized the delivery of outpatient mental health services, and there has been exponential growth in the acceptance and delivery of remote care. No longer does a patient have to be sitting on a therapist’s couch to receive care. The sofa at home will work just fine. This was fostered in a large part by changes implemented during the Covid-19 pandemic. Prior to 2020, less than one percent (1%) of outpatient health care was delivered virtually. A national public opinion poll of U.S. adults by the American Psychiatric Association (APA) conducted in 2021 found that a large percentage of the population have used telehealth services; with more than half saying were willing to use telehealth for mental health services. Most survey respondents used telehealth through a video format (69%), while 38% used phone calls only. At the peak of the pandemic, eleven percent (11%) of all care and forty percent (40%) of mental health and substance use outpatient visits were virtual. While in-person visits for much of medicine have returned to earlier levels, the use of telehealth for outpatient mental health care has remained strong, by some measures continuing to represent thirty-six percent (36%) of such encounters.
The dramatic growth of telehealth has been a boon to both providers and patients, granting access to care previously limited by geographical and time constraints. Demand for behavioral health services has ballooned, both as a result of pandemic-induced anxiety and depression, as well as the decreased stigmatization by the general population of these services. Fortunately, access to virtual care was dramatically broadened, alleviating some of the backlog and shortage of qualified providers. Now rural patients have the same access as city dwellers, workers no longer have to take time off for treatment, patients can receive care during a work break or after hours from the comfort of their own homes, and insurers are covering the care. It’s not perfect, but it’s better.
There were numerous obstacles to the growth of virtual care prior to the pandemic. For example, third-party payors did not always provide coverage, there was a lack of general public acceptance, and state licensing and regulatory requirements limited delivery models. State executive and legislative emergency action during the early stages of the pandemic focused on eliminating many of these barriers. For example, licensing and permitting of health care providers is regulated at the state level, a right granted to the states by the Tenth Amendment to the U.S. Constitution. In the past, this limited the ability of a provider in one state from delivering care to a patient situated in another state. Since the location of the patient determines the site of care delivery, regardless of where the physician is located, in order for a provider to deliver services to a patient located in State A, the physician had to be licensed in State A. Many states also required at least one in-person meeting before allowing virtual visits. The pandemic changed this dynamic, at least temporarily, and this contributed to the exponential growth and acceptance of remote delivery of outpatient behavioral health care.
Most states instituted waivers or statutes linked to the declaration of a state of emergency or an executive order eliminating the requirements that telehealth providers be licensed in the state for a provider in good standing in another state. Simultaneously, many insurers began covering the remote services and some states mandated the waiver of copays for telehealth visits. On the federal level Medicare policy broadened the acceptance of virtual care.
The pandemic now has ended, and so too have the accommodations and waivers, leaving providers and patients scrambling to adapt. On April 10, 2023, President Biden signed a resolution formally ending the coronavirus national emergency that began in March 2020, with the COVID Public Health Emergency formally ending on May 11, 2023. All other states have now followed suit and there currently are no state public health emergency orders in place. What has remained is the acceptance of virtual care for outpatient behavioral health issues, the demand for these services, and the realization that ways to deal with the roadblocks need to be developed.
To adapt and overcome interstate licensing issues, and the resulting unauthorized provision of services, many states have opted to participate in the Interstate Medical License Compact (IMLC), an organization created by the Federation of State Medical Boards to streamline and standardize the medical license application process, creating a single application to be used for licensing in multiple states. This effectively streamlines and speeds up the application process, allowing a provider to easily obtain licensing in a participating state. Thirty-two states, the District of Columbia, and Guam currently are part of the IMLC. Similarly, states are choosing to participate in the Psychology Interjurisdictional Compact (PSYPACT), permitting clinical psychologists to be licensed in multiple states, enabling them to provide telehealth services across state lines.
Given the continued demand and evolving nature of the licensing and regulatory requirements for interstate delivery of health care services, it can be a challenge for providers to stay current on requirements. Accordingly, it is extremely important to monitor changes in federal and state laws, regulations, and policies and to check in periodically with a health law professional or trade association to stay informed of developments, both for information purposes and continued compliance.
About Michael Levinson
Michael Levinson is a partner based in Berger Singerman’s Miami office and a member of the Business, Finance & Tax team. Michael is a nationally recognized healthcare attorney who counsels clients in all aspects of federal and state healthcare issues. He also is a licensed physician. Michael’s advice regularly is sought by a broad range of life sciences businesses, including health systems, institutional and individual healthcare providers, outpatient and ambulatory treatment centers, device manufacturers and suppliers, clinical laboratories, home health agencies, and substance abuse treatment facilities.
