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Being Mindful of Telemedicine Access

By Jen McCormick, Esq. and David Ostrowsky

From a healthcare standpoint, two of the most significant byproducts of the COVID-19 pandemic have been the exploding popularity of Telemedicine,
the practice of providing medical and mental health services remotely, and a heightened awareness of many Americans’ longstanding mental health issues. Due to a confluence of prolonged extenuating circumstances, it became readily apparent to healthcare providers, politicians, social workers, employers, teachers, and parents on both sides of the Mississippi that a.) the inimitable convenience of virtual healthcare does not compromise quality (at least for some patients and practitioners) and b.) many Americans experiencing emotional distress have long been suffering in silence.

Why should these two developments that came to light during the dark days of the pandemic be mutually exclusive?

Certainly, many health plans realize that the inherent advantages of Telemedicine (namely, ease of access and time efficiency) have motivated otherwise hesitant patients to seek mental healthcare support. Telemedicine, being such a convenient and effective alternative to traditional in-person care, has helped meet the unprecedented demand for mental health services. For many coping with severe mental health issues, an appropriate facility is not easily accessible via public transportation or even a car – a conundrum that is only exacerbated when one is juggling multiple low-paying jobs and scrounging for childcare. And yet, some health plans – ones that purportedly provide robust mental health coverage -- are inclined to provide Telemedicine services solely for patients suffering from physical ailments. Others were providing Telemedicine for both physical health and mental health/substance use disorder services when social distancing was in vogue during the pandemic, but have since precluded the latter amidst the return to relative normalcy. Ethics aside, this ultimately may be a potential violation of the
Mental Health Parity and Addiction Equity Act (MHPAEA), which requires health plans that offer mental health and substance use disorder benefits to do so in parity with medical and surgical benefits. For the health plan, the monetary penalties could be steep, the long-term ramifications dire.

Back to ethics. If someone who develops a severe skin rash on their abdomen has the ability to consult with a physician over their smartphone, why shouldn’t a participant on the very same health plan be able to consult with a mental healthcare provider about their uncontrollable OCD symptoms or worsening depression in the same (virtual) manner? Why should more stringent restrictions apply to those suffering from brain-related issues than to those dealing with tendinitis? Why should a plan participant enduring intense panic attacks – who’s paying the same premiums as everyone else on the plan – have to battle traffic and miss work to receive potentially life-changing treatment when those dealing with physical issues don’t have to be so inconvenienced? As if the stigma of requiring mental healthcare hasn’t been ingrained fully enough in the fabric of American society. By any measure, it's a grossly inequitable disparity and one that employer-sponsored health plans, particularly those subject to Nonquantitative Treatment Limitations (NQTL) requirements, would do well to strongly consider the draconian nature of.

Thankfully, a new calendar year is right around the corner, meaning plan administrators and sponsors and employers still have time to review their respective plan documents and summary plan descriptions and make corresponding adjustments for lingering Telemedicine coverage discrepancies. Meanwhile, as Telemedicine regulations continue to evolve (lest we forget, this is still a fairly novel mechanism), there is even greater need for weighing potential changes to plan design as a means of ensuring MHPAEA compliance.

Most importantly, America’s mental health crisis is not dissipating anytime soon, a reality of which the Department of Labor, in its compliance enforcement efforts, is well aware.