Loyola University Chicago School of Law, JD 2022
A common topic of COVID-adjacent conversation these days is the ‘silver lining’ – unexpected positives resulting from the dark grey cloud that has claimed over half a million lives in the United States. Emergency adaptation measures taken by industries otherwise slow to modernize is one such positive. While the framework for teletherapy existed prior to the pandemic, it was vastly underutilized because of both financial and regulatory hurdles. Many insurers wouldn’t pay for teletherapy in most circumstances, including Medicaid and Medicare. But the Trump Administration temporarily relaxed measures for telehealth providers in March 2020, resulting in the Centers for Medicare and Medicaid Services (“CMS”) temporarily approving over eighty new services.
Teletherapy, providing or receiving therapeutic services online, seems especially well suited to remote adaptability. But will the industry be able to capitalize on the benefits once the emergency measures expire?
Changes on the federal level
Mental health providers, like other health care providers, are regulated both federally and on the state level. The Health Insurance Portability and Accountability Act (“HIPAA”) Privacy Rule provides consumers with important privacy rights with respect to their health information by regulating health care providers, including therapists and other mental health professionals. A Notification of Enforcement Discretion was issued in April 2020 by the Health and Human Services Office for Civil Rights announcing that it would exercise its enforcement discretion by not imposing penalties for certain violations of the HIPAA Privacy Rule for health care providers acting in good faith.
A range of health care workers, including clinical psychologists and licensed clinical social workers, are now able to offer teletherapy to beneficiaries of the government-sponsored healthcare programs Medicaid and Medicare. Before this announcement, Medicare was limited for telehealth to certain circumstances. For example, telehealth appointments offered in rural communities were facilitated by the local medical facility via an in-person appointment. Now, that same client can receive remote services from the comfort of their own home.
The scope of state regulation
State licensing boards aim to protect the public by regulating mental health professionals and ensuring unlicensed individuals do not practice. A state passes enabling legislation that gives the board authority to act. The board, in turn, develops rules and regulations that establish the scope of each license, guidelines for professional conduct, and who gets to call themselves what.
Typically, licensing boards require that clinicians only practice within the boundaries of their license. Different states have responded in different ways. Each state licenses psychologists, counselors, marriage and family therapists, and social workers differently.
A catalyst for long term telehealth
The pandemic has massively increased the use of telehealth. Consumer adoption has surged from 11% of US consumers using telehealth in 2019 to 46% by May of 2020. The switch, which was originally used to slow the spread of the virus by reducing in-person visits, has revealed other benefits.
Remote therapy doesn’t necessarily come at the cost of efficacy. In a survey of nearly 2,000 patients receiving outpatient methadone services in Illinois, 89% of participants found telephone counseling “just as helpful as in person sessions”. Salt Lake City based adolescent therapist and social worker Sarah Shea explains that “For some of my clients, teenagers in particular, the telehealth medium creates a buffer of safety and comfortability that allows them to open up more quickly or talk about issues that might otherwise be more difficult to share in person.”
But these benefits are not without their drawbacks.
Access to mental health services
Unfortunately, utilizing telemedicine is hardest for those who need it most, like the elderly and other vulnerable populations. As mirrored in other areas of our newly virtual world, like education, millions of people are left behind due to the digital divide. Further, receiving care from home can establish inherent problems when the home itself may be the source of the need for therapy.
The need for mental health services was on the rise prior to COVID, but the stressors of the pandemic have likely only exacerbated this need. Yet approximately one-third of counties across the United States do not have licensed psychologists available to meet the need of this increased demand. This brings to light a problem therapists face where they are only approved to perform services in the states in which they are licensed. Currently, fifteen states are pushing to make it easier to conduct teletherapy across state lines by granting reciprocity to conduct teletherapy across state lines.
It almost seems a cruel twist of fate that a pandemic that has left millions of Americans facing unprecedented mental health triggers was also the jumpstart to increasing access to mental health services. Congressional action to the regulation of teletherapy would provide the most straightforward approach. Either states or the federal government would need to enact legislation requiring that teletherapy be paid for by insurance, Medicare, and Medicaid. This would also protect against states which may need access to remote services the most from blocking the access to their vulnerable populations.
The world of entrepreneurship has responded by providing an infrastructure to individual providers by bringing the regulatory work in house in addition to other benefits. In an industry that could shift from 3B of the market share in US health spending to 250B, someone will have to take notice soon.