Behavioral Health Practitioners

Increased Demand for Services

Increasing public awareness of the impact of mental health on general wellness has destigmatized the notion that professional treatment is reserved for individuals who have been formally diagnosed with a psychiatric or substance abuse disorder. In fact, anxiety disorders are reportedly the most common mental illness in the United States, affecting 40 million adults age 18 and older, or 18.1% of the population every yearⁱ Whether a patient is in acute crisis, in need of medication management, or seeking cognitive behavioral therapy or psychotherapy to manage life stressors, there is an increased demand for practitioners in the Behavioral Health space.

Insurance Coverage May Be Inconsistent and/or Confusing

Historically, coverage for services in the “mental health” category was limited to those who qualified for Medicaid or could afford to pay privately, but because Behavioral Health is now widely considered to be an essential health benefit, commercial payor funds have become available for these services. Most states have adopted laws requiring parity between mental health and general health benefits in group health insurance (referring to equal treatment of mental health conditions and substance use disorders), but in some cases, parity protection is only available for certain diagnoses, which creates confusion for both practitioners and patients.

Virtual Services: Telehealth Expands Access and Drives Entrepreneurism in the Space

The increased demand for Behavioral Health services also coincides with a significant expansion in the availability of telehealth platforms that provide greater accessibility of these important services. Behavioral Health practitioners can provide a comprehensive scope of services through virtual encounters, and must at all times remain compliant with the applicable standard of care, scope of practice regulations, and other applicable requirements. For entrants in this rapidly expanding category, whether they are Behavioral Health licensees or lay investors, there are multiple legal considerations, including, but not limited to ensuring that: (i) the business model is structured in a compliant fashion; and (ii) the software and third-party telehealth platforms satisfy the requirements of HIPAA.

A Multi-Disciplinary Approach to Care

Specialty physician practices recognizing the need for Behavior Health services among their patients sometimes seek to employ a Behavioral Health practitioner to increase the likelihood of patient follow-up and to facilitate coordinated, high-quality care. Examples include: pediatric practices desiring to assist in the diagnosis and treatment of Attention Deficit Hyperactivity Disorder; and specialists that care for patients whose medical diagnoses are associated with significant psychological stress (e.g., oncology, nephrology, reproductive endocrinology) may see value in including among its offerings a Behavioral Health practitioner who is well-versed in the patients’ unique needs. Physicians should be aware that when Behavioral Health information becomes part of a patient’s medical chart, different, more stringent requirements related to disclosure of the patient’s chart will apply. It is therefore imperative that any non-Behavioral Health physician practice that is considering employment of a Behavioral Health practitioner to expand the practice’s service offerings in that space consult experienced healthcare counsel to determine the impact on the practice, particularly with respect to patient privacy.

Other Considerations for Behavioral Health Practitioners

There are a variety of other legal considerations and business opportunities for Behavioral Health practitioners, including but not limited to:

• Confidentiality obligations, particularly regarding disclosure of Protected Health Information (“PHI”)
• Record retention regulations
• Civil commitment/involuntary hold laws
• Payor audits and appeals
• State licensure investigations and disciplinary sanctions
• Participation in Clinically Integrated Networks (CINs)
• Development of management services organizations (MSOs)

How Frier Levitt Can Help

Frier Levitt’s Behavioral Health Practice Group provides comprehensive regulatory counsel to entrepreneurial licensees in the Behavioral Health space, enabling them to operate their innovative business models in a compliant manner. For more information, call 973-618-1660 to speak with an attorney.