Annual Telehealth Analysis Uncovers Upsurge of Telehealth Services and Increased Legislative Focus on Risk and Compliance
Epstein Becker Green’s (EBG’s) 2021 Telemental Health Laws survey (the survey) recognizes significant state and federal regulations are escalating in importance as telehealth technologies gain more validation as COVID-19 stretches into a second year. EBG’s survey, now in its sixth year, further identifies the rise of telefraud schemes and need for continued enforcements. The survey’s complete findings are available to download as an app for iPhone, iPad, and Android devices.
In 2021, policies changed throughout the year and across the nation, representing the telehealth industry’s progression and enabling significantly greater provision of services via telehealth. Federal and state governments have continued to support flexibilities, put into place during the pandemic, that have promoted increased use of telehealth, both as lessons learned and to help lawmakers and regulators decide which temporary changes should be made more permanent.
Uptick in Telehealth Fraud and Enforcement
As the quantity of telemental health services increase, more frequent fraud requires lawmakers to enforce rigorous guidelines at the state and federal levels. As EBG reports, aggressive enforcement actions from the U.S. Department of Justice (DOJ), the U.S. Department of Health and Human Services, and the Office of Inspector General (OIG) include:
- In May, the DOJ addressed $143 million in false billing due to 14 telehealth leaders filing fraudulent COVID-19 Medicare claims. In addition, the Center for Program Integrity, part of the Centers for Medicare & Medicaid Services (CMS), took action against more than 50 medical providers for their involvement in schemes relating to abuse of CMS programs.
- In September, the DOJ targeted approximately 150 defendants for their alleged participation in various health care fraud schemes that resulted in $1.4 billion in alleged losses in regards to telemedicine, COVID-19, substance abuse treatment facilities, and illegal opioid distribution schemes.
- Also in September, the OIG reported that more than 20 states noted fraud, waste, and abuse as a “concern” specific to telehealth. Furthermore, the OIG recognized that some states do not have the resources to protect health care organizations against fraudulent schemes.
These enforcement actions demonstrate that the telehealth industry should not only consider the law from a policy and operations perspective, but should also invest in a robust compliance infrastructure.
Telemental Health Developments Across the 50 States
By the end of 2021, many states will have revoked temporary states of emergency that include telehealth policy adjustments. However, these states are activating more permanent laws to provide patients and providers the option to continue with telehealth services and increase patient engagement. A few areas represented in the new policies are as follows:
- Professional Licenses: A number of states joined one or more professional licensure compacts that allow health care professionals to hold a valid license to practice in states they are not licensed in as long as they hold a license in good standing with their home state.
- Prescription Practices: Most recent guidelines allow licensed physicians to prescribe non-controlled substances remotely, without requiring that the physician conduct a prior in-person examination. In 2021, states continue to adopt specific standards to prescribe via telehealth services.
- Patient Privacy and Confidentiality: New guidelines intend to assure patients privacy while using telecommunications with health care professionals. Approximately half of states have laws pertaining to the provision of telehealth services that go beyond federal and state privacy and confidentiality requirements in the practice of medicine. In addition, 45 jurisdictions have established informed consent requirements that must be followed before telehealth services are provided.
“Now more than ever, legislators are under immense pressure to manage the flexibilities granted in response to the COVID-19 pandemic which increased patient access to telehealth services exponentially,” said Amy Lerman, a Member of the Firm in Epstein Becker Green’s Health Care and Life Sciences practice. “The continued emphasis on telehealth services has put a much greater focus on the potential for fraudulent behavior and the need for enforcement activity, and it’s vital to refine the current policies in order to ensure compliance and mitigate risk associated with the health care industry’s progress.”
The survey is co-authored by Amy Lerman and Francesca Ozinal and the following attorneys and contributors from EBG’s Health Care and Life Sciences team: Alexis Boaz, Audrey Davis, Vidaur Durazo, Daniel Fahey, Priya Kaulich, Devon Minnick, Lauren Petrin, Olivia Plinio, Matthew Sprankle, Christopher Taylor, Bailey Wendzel, Nija Chappel (Law Clerk), Chloe Hillard (Law Clerk), and William Walters (Law Clerk).