Expert Q&A: COVID-19 and Mental Health Law

Practical Law Article w-030-8592 (Approx. 6 pages)

Expert Q&A: COVID-19 and Mental Health Law

by Practical Law Health Care

How has the COVID-19 pandemic impacted mental health treatment?

Since the Secretary of the Department of Health and Human Services (HHS) declared a public health emergency caused by COVID-19 on January 31, 2020 to be effective on January 27, 2020 (HHS: Determination that a Public Health Emergency Exists; January 31, 2020), federal and state governments have issued waivers, guidelines, and amended health care laws and regulations to address the pandemic's effects on health care.

The pandemic has heavily impacted the traditional accessibility and the quality of care for individuals seeking mental health treatment, including for emergency, inpatient, and outpatient care.

For example, emergency rooms may require:

COVID-19 testing before examination or admission.
The transfer of psychiatric patients to other facilities if the patient tests positive for COVID-19 or the psychiatric unit is closed or full.
Prolonged emergency room stays until the patient can be admitted or transferred for psychiatric treatment.

At the height of the pandemic, impacts on inpatient care included decreased psychiatric:

Beds due to the conversion of psychiatric units to treat patients with COVID-19.
Staff, nurses, and physicians who were redeployed to treat patients with COVID-19.
Staff due to illness, caring for loved ones, or quarantine protocols.

On-going impacts on inpatient care include:

Safety protocols for the psychiatric unit, including:
- requiring face masks for staff, physicians, and patients as well as additional personal protective equipment (PPE) as necessary;
- reducing or eliminating group activities, group therapy, and congregate meals;
- observing social distancing guidelines or isolation if psychiatric patients test positive for COVID-19; and
- changing visitation policies.
The transfer of a psychiatric patient testing positive for COVID-19 to another facility or to a medical unit. If this occurs, treatment and the therapeutic alliance between the patient and the treatment team will be disrupted. Court orders for medication generally terminate on discharge from a facility. For example in New York, court orders for medication terminate on discharge to another facility and do not transfer. The accepting hospital must evaluate the patient and apply to the court again for continued treatment, which may result in breaks in treatment and medication.

Impacts on outpatient care include:

Termination of in-person appointments, including individual and group therapy sessions at outpatient clinics and related medical or mental health offices.
Denying or delaying admission to those individuals testing positive for COVID-19 or experiencing symptoms to partial hospital programs and other outpatient centers that have adjusted enrollment criteria.
Reduction or elimination of in-person visits for court-ordered outpatient treatment services.
New protocols including:
- requiring an appointment with no walk-ins;
- screening questionnaires;
- taking temperatures before entry;
- requiring face masks;
- following social distancing guidelines; and
- limiting waiting room capacity.
Court-ordered involuntary outpatient treatment, which in New York is called Kendra's Law or Assisted Outpatient Treatment (AOT), has been heavily affected by the reduction or elimination of in-person, outreach-based practices. In New York, assertive community treatment (ACT) is encouraged to prioritize essential services, such as medication assessment and administration, as well as acute crisis intervention. Providers relied heavily on virtual communications by video conference or telephone throughout the pandemic. These reduced or lack of in-person visits by case managers or social workers may contribute to patients' non-compliance, worsening symptoms, and psychiatric decompensation. As of May 2021, some counties in New York have been able to safely resume in-person visits.

How has COVID-19 impacted the mental health legal system?

In taking safety precautions, some court systems moved to virtual hearings only or have eliminated or significantly reduced in-person appearances.

Court hearings involve, but are not limited to:

Involuntary retention of psychiatric patients.
Psychiatric treatment over the patient's objection.
Applications for AOT.
Court-ordered involuntary outpatient treatment.

During the pandemic, providers and patients have not been transported to the courthouse or other hospitals to attend in-person hearings. Some of these changes are beneficial to providers and patients, including:

They do not have to wait for when their cases are to be heard.
There is less cost because there is no patient transport.
There is no elopement risk during transport to court.
Security is readily available, if needed.
Other interventions, such as medication are readily available.

Liability for providers may also be reduced because doctors and staff do not have to leave the unit to attend court in person, which reduces any interruptions in the daily milieu on the unit and treatment of patients. It is unclear whether this flexibility may continue as courts open for in-person hearings.

In New York, Mental Hygiene Legal Service (MHLS) provides legal services to psychiatric patients. Before the pandemic, MHLS staff visited their clients in-person to provide education, advice, and prepare them for court proceedings. MHLS attorneys also participated in administrative reviews and other meetings.

Starting in March 2020, New York Mental Hygiene Law Article 9 court proceedings have been held virtually via Skype for Business and Microsoft Teams. MHLS provided services virtually.

As of June 2021, all Mental Hygiene Law Article 9 court proceedings remain virtual. However, judges and court staff have returned to work in person in the courthouses. MHLS staff have returned to their offices and have resumed in-person visits on the psychiatric units to see their clients.

What are the key policy and regulatory changes impacting mental health treatment that have been implemented during the COVID-19 pandemic?

Telehealth has surged in popularity as a means to provide health and mental care services during the pandemic. Various federal and state restrictions on reimbursement, coverage, privacy security, prescribing, and licensing have been relaxed to increase access to telehealth services during the pandemic.

Temporary statutory changes as well as waivers from the Centers for Medicare and Medicaid Services (CMS) have expanded Medicare coverage and reimbursement for telehealth services during the public health emergency. Many private payors and Medicaid programs have followed suit. For more information on telehealth coverage and reimbursement changes during COVID-19, see Practice Note, Telehealth Coverage and Reimbursement: Reimbursement of Telehealth During COVID-19.

Certain federal and state waivers:

Allow for reimbursement for telehealth services offered through audio only (telephone).
Eliminate the requirement that new patients must be seen in-person for their initial session or before providers can prescribe certain medications via telehealth.

To be compliant with the Health Insurance Portability and Accessibility Act (HIPAA), health care providers must establish mechanisms to protect patient privacy and comply with HIPAA when providing health care services via telehealth. The HHS Office of Civil Rights waived penalties for HIPAA violations to allow communications technologies, such as FaceTime, Zoom, or Skype, to be used for telehealth during the public health emergency (HHS: Notification of Enforcement Discretion for Telehealth Remote Communications During the COVID-19 Nationwide Public Health Emergency). Waiving this requirements has allowed providers to use easily accessible technologies and not have to find and invest in new technologies as they have adapted to expanded demand for telehealth services.

The US Drug Enforcement Administration (DEA) relaxed the enforcement of some rules, for example, by waiving the requirement for an in-person visit with a physician to be prescribed controlled substances (DEA: DEA's Response to COVID-19 (Mar. 20, 2020)). Health care providers also do not have to register with the DEA in each state if they are registered in at least one state (DEA: DEA Policy: Exception to Separate Registration Requirements Across State Lines (Mar. 25, 2020)).

CMS waived Medicare and Medicaid requirements that out-of-state providers be licensed in the state where they are providing services if they are licensed in another state, which under:

Medicare allows providers licensed in one state to provide services to patients in another state (including via telehealth).
Medicaid does not preempt state-specific licensure restrictions. However, all states and the District of Columbia introduced licensure flexibilities during the public health emergency (see State COVID-19 Telehealth Waivers for Private Payors Chart).

For more information, see Practice Note, Telehealth Coverage and Reimbursement; Telehealth Coverage and Reimbursement Checklist; State Telehealth Requirements for Private Payors Chart; and State COVID-19 Telehealth Waivers for Private Payors Chart.

How should providers protect against legal liability related to providing telehealth services during the pandemic?

To protect against legal liability, clear communication with new and existing clients and patients is necessary. Clients and patients should be notified of all new policies and procedures implemented during the pandemic.

Consent forms are useful to:

Explain what to expect from a telehealth visit, the benefits and risks of mental health services provided through telehealth, any fees, and confidentiality measures.
Discuss confidentiality and the patient must consider privacy if family or anyone else are nearby.
Get the patient's informed consent in writing before the first telehealth session.

Documentation is also an important measure to avoid legal liability. Details of the conversation about informed consent should be documented in the patient's medical record, including if an existing patient declines to engage in telehealth. All outreach attempts, referrals offered, and related actions should be recorded in the medical record. Providers should document each telehealth session and if in-person treatment is discussed, this discussion regarding policies, procedures, and safety measures should be documented.

Providers should continuously review federal, state, and private payor requirements to ensure that existing waivers still apply or if transition dates have been announced. When the waivers expire, immediately notify all clients and patients to explain the procedures that may change to comply with the updated or reinstated requirements.

What changes should be made for the future both in non-pandemic times and in the event of another crisis?

To better facilitate mental health treatment and comply with changing requirements going forward or in handling the next crisis, there should be an increased use of electronic medical records so that providers can access a patient's record from any secure location. Stronger protections for providers against liability stemming from relaxed federal and state regulations are favorable. The continued use of telehealth and payment parity (reimbursement at the same rate as if the same service is provided in-person) for telehealth services is advisable.

Expert Q&A: COVID-19 and Mental Health Law | Practical Law