Epstein Becker Green’s Telemental Health Laws Survey Featured in “Fraud Enforcement Followed Spike in Telemental Care”

Amid a rise in telehealth use for mental healthcare, fraud and consequent enforcement activities also increased, according to a new report.

Released by law firm Epstein Becker Green, the report examines telehealth laws and policies within the mental and behavioral health space, including fraud enforcement actions by regulatory bodies.

The U.S. Department of Justice, Department of Health and Human Services, and the Office of Inspector General have taken several strong enforcement actions in 2021. These include the Justice Department targeting around 150 defendants for their alleged participation in several healthcare fraud schemes that resulted in $1.4 billion in alleged losses, including $1.1 billion in losses due to fraud committed using telemedicine. …

Further, in May, the Justice Department announced criminal charges against 14 defendants for $143 million in false billing that included fraudulent claims for telemedicine visits that did not occur.

In addition, the Center for Program Integrity, part of the Centers for Medicare & Medicaid Services, took action against more than 50 medical providers for their involvement in fraud schemes related to CMS programs.

Even at the state level, more than 20 states reported fraud, waste, and abuse as a "concern" with respect to telehealth services used to provide behavioral healthcare, according to information collected by the Office of Inspector General in September.

"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," the report authors stated.

The report also makes note of more general telehealth trends across U.S. states, such as the medical licensure flexibilities instituted due to the COVID-19 pandemic. Twenty-nine states and the District of Columbia have joined the Interstate Medical Licensure Compact for physicians, 34 states have joined the Nurse Licensure Compact for registered nurses and licensed practical nurses, and 26 states have joined the Psychology Interjurisdictional Compact for psychologists.

A growing number of states also introduced telehealth-specific data privacy and confidentiality laws in the past year. About half of U.S. states have laws, or other guidance, which specifically apply to telehealth use and extend beyond federal and state privacy and confidentiality requirements governing care delivery in general. Approximately 45 jurisdictions have established some type of informed consent requirements for telehealth.

Another key trend has been the loosening of restrictions around prescription of non-controlled substances via telehealth. Many states allow licensed physicians to do remote prescribing without requiring a prior in-person examination, and instead allowing the exam to take place through a virtual visit.

"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 Epstein Becker Green's Health Care and Life Sciences practice, in a news release.