Articles: Congress throws a wrench in Medicare telehealth rules &
Mental health stigma-inducing barriers must be removed for law students {Below}

Congress throws a wrench in Medicare telehealth rules

By Chuck Nelson, Associate Editor
April 12, 2021

A change in Medicare telehealth rules has come under fire from healthcare analysts following passage of the Omnibus Consolidated Appropriations Act in late December.

The provision – which requires periodic in-person visits with clients before telehealth visits will be covered – has been widely panned even as other parts of the bill were designed to expand access to telehealth coverage.

A spokesperson for The Centers for Medicare & Medicaid Services (CMS) expects the agency to address implementation of the change soon but said in March that the new rule would not take effect until after the COVID-19 public health emergency.

The provision was part of a 5,600-page appropriations bill that was signed into law in late December. Section 123 of the Consolidated Appropriations Act includes language that says, “providers must have regular in-person visits on a ‘regular interval’ to be determined by the Health and Human Services Department,” the Telebehavioral Health Institute (THI) reported on its website in February.

A portion of the rule states: “Payment may not be made under this paragraph for telehealth services furnished by a physician or practitioner to an eligible telehealth individual for purposes of diagnosis, evaluation or treatment of a mental health disorder unless such physician or practitioner furnishes an item or services in person, without the use of telehealth.”

The change is a shift away from the recent trend of increasing telehealth usage during the COVID-19 pandemic and could be problematic for many providers who have given up physical office space during this period.

“This in-person requirement doesn’t align with or reflect any

applicable state laws around telehealth visits for mental health

services, which do not have any such requirement,” the

Healthcare Information and Management Systems Society

Inc. said in an analysis of the legislation. “While it does

expand access to telebehavioral health, it sets a bad

precedent that assumes a person can’t establish a

relationship with a mental healthcare provider via telehealth.

Further, it threatens to impact people who are home-bound, transient or have other barriers to accessing healthcare in-person.”

“While nearly all of the changes that have been made by the federal and state governments to expand telehealth as a result of the pandemic have been helpful in making telehealth more widely available to deliver medical care, section 123 appears to be illogical and care-blocking action to behavioral healthcare,” according to the Telebehavioral Institute.

“The act changes the Medicare telehealth coverage statute, expanding Medicare payment beyond substance-use disorder treatment (already required under the SUPPORT Act) to more broadly cover treatment of mental health disorders,” Nathaniel Lacktman, a partner at the Foley & Lardner law firm, wrote in a blog post.

“The in-person exam requirement is at odds with the direction that telehealth policy has moved over the last decade. It disrupts Medicare’s historical approach, which is to defer to state laws on professional practice requirements and clinical standards.”

Lacktman contends the change comes at a time when most people would support

expanding Medicare coverage of these services.“The need for access to mental healthcare is high, considering the well-documented shortage of mental health practitioners nationwide, particularly in rural areas,” he wrote.

Mental health stigma-inducing barriers must be removed for law students

By Bree Buchanan, JD, MSF
April 12, 2021

While many individuals have a less than positive impression of lawyers as a whole, the importance of our legal system and the rule of law are integral to a healthy and just society. Likewise, hale, hearty and high functioning lawyers are critical to achieving these ideals.

Unfortunately, the legal profession is facing a crisis of degraded mental health with sky high rates of depression, anxiety and substance use disorders among all lawyers, and the highest for those under 30 years of age.

These behavioral health problems begin, for many, during law school when students are first exposed to the chronic and crushing levels of stress and toxic competitiveness. In the best of times, maintaining one’s mental health through these three years is a challenge.

In 2020, the COVID-19 pandemic, racial justice reckoning and environmental disasters made this nearly impossible, as these events dealt a devastating blow to the sense of normalcy and relative safety experienced by law students, a group comprised mostly of young adults.

For law students, the compounded crises are exacerbated by upended routines for attending class, social isolation, concerns about inequities when taking bar examinations, supporting themselves, finding post-graduation employment and agonizing over soul-crushing tuition indebtedness. Expectations for future success are dampened by news of the profession’s pay cuts, furloughs and other personnel reductions.

Overall, the events of 2020 acted as an accelerant to the behavioral health problems experienced by the legal profession’s youngest members.

Considering these challenges, one would expect that everything possible is being done to encourage law students to seek appropriate mental health treatment soon after onset of their problems. Unfortunately, the bar admissions process – with its intrusive and overly broad inquiries into mental health history – creates a fundamental barrier to the help-seeking behavior the profession should be encouraging.

A recent survey of law students shows that of the 42 percent of respondents

who felt they needed mental health assistance in the past year, only half

sought treatment of any sort. As a result, these students onboarded into

the legal profession as new lawyers without much needed therapeutic

assistance.

Reasons for not getting help include fears that treatment and its mandated

disclosure required for admission to the bar will pose a threat to finding a job,

their academic status, or approval to become a member of the bar. Others

maintain the overly defensive belief that “I can handle it myself.” These reasons

echo a familiar refrain by others who delay or refuse therapy because of the social

stigma still attached.

Since the Department of Justice’s 2014 investigation in Louisiana and the resulting consent decree that prohibited wide-ranging inquiries about any mental health diagnosis or treatment, a few states have either amended or removed their questions. Rather than ask about the applicant’s condition or status of having had a behavioral health disorder, they are focusing only on recent conduct that could affect the applicant’s ability to competently practice law.

Undoubtedly, students in these jurisdictions will experience less perceived pressure to “go underground” with their behavioral health concerns, thereby reducing the nearly 50 percent of students who believed they had a better chance of getting admitted to the bar if a mental health problem was hidden.

A focus on a healthy and fit bar contemplates fundamental change in the way the education and formation of young lawyers is conducted. Pathways must be cleared of stigma-inducing, bureaucratic measures for these students suffering from behavioral health disorders that – without intervention – tend to be progressive.

The overarching goal should be to shape a profession in which the humanity of all its members is honored and all have the opportunity to thrive.

Bree Buchanan, JD, MSF, is the Board President of the Institute for Well-being in Law and Senior Advisor for Krill Strategies, a national consulting firm for major legal employers. Her email is: bree1964@att.net