This article will describe how the Mission Act helps veterans address their mental health needs through telehealth, point out limitations of the Mission Act that hinder the availability of such care, and suggest several actions the government could take to ameliorate these problems.
Veterans and Mental Health
Although maintaining physical health is generally prioritized among military personnel, mental healthcare and treatment are just as critical for their well-being.2 According to the latest data available from the U.S. Department of Veteran’s Affairs Office of Research and Development, more than 1.7 million veterans received treatment in a VA mental health specialty program in fiscal year 2018, with anxiety, depression, post-traumatic stress disorder (PTSD), schizophrenia, bipolar disorder, substance abuse, and suicide prevention among the most common conditions treated.3 The gravity of such consequences among military personnel is stark compared to ordinary civilians.4 For example, “traumatic events, such as military combat, assault, disasters or sexual assault can have long-lasting negative effects such as trouble sleeping, anger, nightmares, being jumpy and alcohol and drug abuse,” and can give rise to PTSD when they don’t go away.5 According to a 2014 study in JAMA Psychiatry, the rate of PTSD among active duty members was found to be 15 times higher than civilians, and the rate of depression was five times higher than civilians.6 Further, a traumatic brain injury can result in symptoms such as headaches, fatigue or drowsiness, memory problems, mood changes, and mood swings.7 In conjunction with these conditions, which largely originate from serving on the frontlines, veterans face a lot of stressors once they return home, premised on the very “inescapable” fact that it is difficult to resume everyday functioning after serving in the armed forces, culminating in transition stress, a condition that “encompasses all of the pressures that veterans face when transitioning back into civilian life.”8
These mental health conditions also have a considerable economic impact on the country, imposing significant economic, healthcare, and social costs.9 This has cost the nation almost a trillion dollars per year, including lost earnings and payments.10 Given that current findings suggest that mental health conditions in the veteran population have been worsening over the years, these conditions pose a very real threat to active and former military members, necessitating effective and efficient medical attention. According to the most recent statistics available, the U.S. Department of Veteran Affairs reported that the number of veteran suicides exceeded 6,000 each year from 2008 to 2017.11 Further, the report cited that the average number of suicides per day rose from 86.6 in 2005 to 124.4 in 2017 among U.S. adults.12 Worse still, in 2017, “the suicide rate for Veterans was 1.5 times the rate for non-Veteran adults, after adjusting for population differences in age and sex.”13
The Mission Act
The Mission Act is a federal law that removes geographic barriers to VA telehealth, enabling veterans to access VA telehealth services in their communities from any location in the United States, U.S. territories, District of Columbia, and Commonwealth of Puerto Rico.14
The Origins of the Mission Act: “Anywhere to Anywhere” Initiative
On August 3, 2017, the Trump Administration created a federal program called the Anywhere to Anywhere Initiative in response to the general acceptance that accessibility to out-of-state telehealth providers in non-VA healthcare facilities may benefit veteran patients who cannot access healthcare due to provider shortages.15 The Anywhere to Anywhere Initiative allowed veteran-patients access to VA telehealth services anywhere from a VA provider located outside of a VA health-care facility by removing geographic barriers that they may face when accessing VA care.16 However, in practice differing state licensing requirements and the questionable legality of delivering treatment across state lines to areas where providers are not licensed to practice kept many from providing such care, which led to the consensus that the Anywhere to Anywhere Initiative was not without fault.17 According to a House Committee on Veterans Affairs Report from October 30, 2017:
The continued expansion of telemedicine across the VA health care system is constrained by restrictions on the ability of VA providers to practice telemedicine across state lines without jeopardizing their state licensure and facing potential penalties for the unauthorized practice of medicine.18
How the Mission Act Improves Upon the “Anywhere to Anywhere” Initiative
The VA and Congress addressed the state licensure problem and the unauthorized practice of medicine concern stemming from the Anywhere to Anywhere Initiative through the creation of the Mission Act.19 First, “on May 11, 2018, the VA published a final rule in the Federal Register to exempt its providers who deliver care via telehealth from certain state licensing laws and regulations,” including two major elements that changed existing practice delivery, which were that “(1) VA providers may deliver telehealth services outside of VA health care facilities and (2) state licensing boards may no longer deny or revoke a VA provider’s license if he or she provides a telehealth service in a state where the provider is not licensed to practice in non-VA health care facilities.”20 These changes addressed concerns VA providers had that providing telehealth services across state lines in non-VA facilities could cause their state licensing boards to suspend or revoke their licenses.21 On June 6, 2018, the Mission Act was enacted, which codified the core principles of the rule, and extended authority to VA providers that meet the statutory requirement of a “covered health care professional.”22 Under the Mission Act, VA providers meeting this statutory requirement would be protected from possible liability issues arising from state licensing laws.23 The Mission Act invokes Chapter 17 of Title 38 of the U.S. Code, which states:
(d) Relation to State Law. (1) The provisions of this section shall supersede any provisions of the law of any State to the extent that such provision of State law are inconsistent with this section. (2) No State shall deny or revoke the license, registration, or certification of a covered health care professional who otherwise meets the qualifications of the State for holding the license, registration, or certification on the basis that the covered health care professional has engaged or intends to engage in activity covered by subsection (a).24
As a result, “according to the VA, nearly 10,000 VA providers gained the authority to provide out-of-state telehealth services to veteran patients in non-VA health care facilities in states where the provider is not licensed to practice.”25
A Closer Look at Legal Challenges Inherent in Telehealth for Mental Health Services in Conjunction with the Mission Act: The Need for More Federal Intervention
The Mission Act is not a panacea, as it does not adequately address some of the legal and other challenges inherent in telehealth that can adversely affect the veteran population. These include operational access to care barriers in the form of provider shortages and broadband availability; privacy and confidentiality risks associated with telehealth encounters; and questions regarding the appropriate method for the delivery of mental health services through telehealth. These areas of concern necessitate mitigation on a federal level, and invite a variety of potential solutions for consideration by law and policy decision-makers.
Operational Access to Care: Provider Shortages and Broadband Availability
The decreasing operational access to care is largely due to a shortage of providers that administer mental health services.26 With only 26.9 percent of the need met for mental health providers in general, many VA centers are understaffed, resulting in not only extremely long wait times prior to accessing in-person care, but also in a shortage of providers available to deliver telehealth services.27 The shortage of physicians has also contributed to driving the mental health crisis in the United States due to decreased federal funding for graduate medical education, most commonly caused by state budget cuts leading to fewer loans given and a decrease in loan repayment assistance programs.28 Research has shown that the number of graduates from medical school remains constant, without any growth, perpetuating an increase in physician demand without sufficient supply.29 Furthermore, of the physicians treating veteran populations for mental health conditions, most are often concentrated in urban areas, which is problematic for veterans who live outside of and far from these areas because it keeps them from obtaining medical care.30 In areas where the mental health provider shortage is particularly severe, the reduction in access to care can have devastating effects by fueling existing geographic disparities.31
More can be done on the federal level to reduce provider shortages. Congress should appropriate more federal funds towards loan repayment assistance programs to ease the enormous financial burden that medical students face upon graduation, and incentivize more enrollment in medical schools at the outset.32 To target the treatment of veterans specifically, federal programs could provide forgivable loans to medical school students and residents, contingent on their agreement to treat veterans through a VA facility once they graduate. For instance, participants could receive a certain amount of funds as a loan for medical school, and once they graduate, they would get a certain percentage of that loan forgiven for each year they treat veterans, up to a set amount of year. Incentivization programs could be created modeled after the Health Professions Scholarship Program (HPSP) offered by the U.S. Army, which provides one- to four-year scholarships to medical students, who during their studies will be commissioned as second lieutenants in the Army Reserve and upon graduation will become captains on active duty.33
Another way to address the mental health provider shortage would be to expand the types of providers that can provide mental health services to the VA.34 Such a bill was introduced in the 116th Congress to allow for trainees to administer these services through telehealth.35 Under this “VA Mission Telehealth Clarification Act,” trainees, including interns, residents, fellows, and graduate students, would be able to provide care through the VA's telehealth system to veteran patients to reduce the mental health physician shortage problem.36 Accordingly, this legislation should be reintroduced to the current Congress.
Broadband and Internet Access Problems
Veterans may experience access barriers to VA telehealth services due to the lack of access to broadband internet, which is more likely to occur in rural and low-income urban areas.37 Because the effective implementation of telehealth services requires robust broadband availability and access to be deliverable to patients,38 federal oversight is needed to ensure that policymakers “significantly expand and enhance broadband access and infrastructure to reap the benefits of telepsychiatry.”39 One proposed solution to this inaccessibility barrier would be to evaluate whether non-VA facilities, such as libraries, schools, and post offices, can serve as internet/online hotspots in affected areas of the country.40 The federal government should continue investigating how to effectively deploy broadband infrastructure in underserved geographic areas to bridge the “digital divide” that results from disparities between these areas and those with higher socioeconomic status.41 This has already been accomplished to some extent by providing veterans in these areas with tablets that support programs such as VA Video Connect, which enables veterans “to virtually meet with their VA healthcare providers, in a setting known as a virtual medical room, using encrypted video to ensure the session is secure and private.”42
Ensuring Privacy and Confidentiality of Telehealth Encounters
Cyberthreats and Security Risks
Telehealth is vulnerable to privacy and security risks.43 No system storing mental health information is absolutely safe, and telehealth specifically is at risk for cyberthreats and the hacking of patient data.44 While the Health Insurance Portability and Accountability Act of 1996 (HIPAA) regulates the protection of patient protected health information, including mental health information, in the hands of covered entities, because there is no uniform electronic storage system that is technologically infallible and not all providers comply with HIPAA’s security requirements, the extent of data protection varies and user error is unavoidable.45 Moreover, since “patient privacy, confidentiality and data security need to be protected at all stages of a telehealth encounter, as it would be in traditional forms of care delivery,” there needs to be appropriate protocols and measures to protect patient security and integrity of data at the patient end of the electronic encounter, during transmission, and among all healthcare professionals and other personnel who may be supporting the technology.46 However, when a veteran-patient performs telehealth-related tasks on a personal device or computer, such as viewing, downloading, and transmitting his/her electronic protected health information (ePHI) over the internet, it is more likely that an unauthorized party can compromise the device and internet connections.47 In addition, the VA “cannot ensure that a veteran is accessing VA telehealth services on a trustworthy device via a trustworthy connection — that responsibility falls upon the user when the user is accessing the service on their personal device.”48
The federal government should act to reduce privacy and security risks to the VA that arise out of telehealth used for mental health services. Currently, the VA operates a cybersecurity program that helps veterans whose information has been compromised,49 which “ensures that, among other things, ePHI and personally identifiable information that are transmitted via VA devices and systems are protected against cybersecurity and privacy threats.”50 One component of the program is that the VA can issue its own mobile devices to its patients to ensure that the device and the connection are secure and trustworthy.51 Accordingly, the Mission Act should be amended to require the VA to take more preventative measures against cyberthreats and hacking to ensure that VA-issued mobile devices are less prone to privacy and security concerns.52 For instance, the Mission Act should require the VA to maintain continuous communications on a regular basis with internal and external parties involved with the issuance and management of VA-issued mobile devices, such as coordinating centers, Internet service providers, victims, other computer security incident response teams, and vendors, rather than just communicating with these parties only in the case of recovery from a single cybersecurity event.53 There should also be an amendment that requires the VA to issue its own mobile devices to veterans residing in low-income and rural areas who may face broadband infrastructure barriers so that the same level of robust security is afforded to all at risk throughout the entirety of any one telehealth encounter.54
Problems with Mental Health Software Applications for Mobile Devices
The mental health applications for mobile devices that veterans commonly access are of insufficient quality because the Food and Drug Administration (FDA) exercises enforcement discretion over the software used in many of these applications.55 According to the VA, in 2019 alone there was a 17 percent increase in telehealth services at the VA over the prior fiscal year, contributing more than 2.6 million episodes of telehealth care, of which more than 200,000 or approximately two-thirds of the 294,000 appointments held through video sessions in 2019 were for telemental health visits.56 Under the FDA’s discretionary enforcement authority, while software comprising certain mental health applications may meet the definition of a medical device, which by definition is “intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease,” the FDA may choose to not provide oversight if it believes the application poses a low public risk.57 Moreover, the FDA doesn’t require manufacturers of certain mental health applications to submit premarket review applications or register and list their software with the FDA, resulting in certain mental health applications entering the market and used by veterans that are unregulated by the FDA.58 Their use could potentially harm veterans rather than help them since without FDA regulation, many of these applications could be inaccurate or wrong.59 Currently, the FDA exercises discretionary enforcement over a variety of software that help patients diagnosed with psychiatric conditions, such as PTSD, depression, anxiety, and obsessive compulsive disorder, which are all prevalent within the veteran population.60 For example, there are certain mental health applications offered through the VA used by veterans suffering from PTSD, such as PTSD Coach, PTSD Family Coach, Mindfulness Coach, CBT-i Coach, and VetChange, which may utilize software development kits (SDKs) that rely on companies that do not make explicit how user information is handled or shared.61 As a result, because many of these applications are not subject to HIPAA, the risk of personally identifiable information becoming accessible by third parties that do not enforce privacy standards as vigorous as the VA is increased.62 With the growing number of mobile mental health applications available, combined with the increase in mental health applications used in the delivery of telehealth services, there is a greater risk of harmful consequences to veterans who use these applications to obtain mental healthcare services.63
Because discretionary oversight by the FDA is not enough to protect veterans from the potential risks and dangers that may result from using mental health applications that are inadequately regulated, the Mission Act should be amended to require that the FDA provide strict and meaningful oversight, rather than discretionary enforcement authority, over the mental health applications most commonly used by veteran populations.64 This would ensure that even mental health applications that pose low risks to the veteran patient population, even if used as they were intended, are still afforded the same level of vigorous oversight as in applications that pose higher risks when used by the same population of patients.65 Additionally, the Mission Act should be amended to require that the FDA mandate manufacturers of certain mental health applications to submit premarket review applications and register and list their software with the FDA to ensure that they are informed of which companies rely on potentially problematic SDKs that may threaten third-party sharing of private information.66
Determining the Appropriate Method for Delivery of Mental Health Services Through Telehealth
As the use of telehealth technology for mental health becomes more widespread, the appropriate method of delivery of mental health services through telehealth, or “what another similarly trained and equipped provider would do in a similar situation” remains a significant concern for policymakers.67 The challenges posed are two-fold: first, the recognized standard of care for telehealth in a particular medical field may not be appropriate for mental health services, and second, what may be the preferred standard of care for in-person mental health services may not be conducive to telehealth service delivery. The American Telemedicine Association, the American Medical Association, and the Federation of State Medical Boards have promulgated guidelines for the standard of care and best practices governing the provision of telehealth;68 however, state leaders and policymakers have enacted their own definitions within their statutes and regulations which must be met in order for providers to provide mental health services through telehealth, and these requirements vary from state to state.69 To address these variations and resultant inconsistencies, the method of telehealth service delivery for mental healthcare should be more standardized so that it would be easier for providers to comply with the telehealth rules. To achieve this, the VA should institute national rules for its telehealth services so that veterans who seek telehealth services through the VA specifically are delivered care according to consistent and unified guidelines.70 These rules should standardize on a federal level which mental health services can be delivered through telehealth, the definition of the physician-patient relationship, the requirements for informed consent, and related provisions.71
While the Mission Act increases the ability of veterans to obtain telehealth services, the legislation is not without fault. Decision makers on the federal level should revisit the Mission Act to ensure that the underlying purpose of the legislation is effectively met in order to maintain and improve the delivery of mental health services to veterans. As the practice of telehealth evolves in substance and process, the legislation will need to evolve as well, requiring the generation and revision of laws to satisfy the needs and complement the requirements of telehealth practice. Further introspection and adaptive intervention are necessary as telehealth becomes a “new normal” in the delivery of healthcare. Just recently, telehealth services have been heavily tested with the fast and widespread onset of COVID-19. These services, with their seemingly appropriate delivery conducive to a state of strict quarantine enforcement, appear to be tailored to confront the challenges brought forth by the pandemic, which necessitates remote healthcare practice. When this chapter of the COVID-19 pandemic concludes, federal lawmakers will have to determine what telehealth services delivery for remote healthcare was successful and what needs to be improved. An assessment of mental health services for the veteran population during this pandemic will undoubtedly provide an abundance of information to use to drive the continued evolution of mental health services through telehealth to veteran populations in a legal manner.