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Talkspace's unusual pitch to therapists: We'll pay your legal fees if you get in trouble

By Andrew Rebhan

October 21, 2020

    The ongoing effects of Covid-19, social unrest and protests around the country, and the upcoming presidential election have Americans feeling anxious, stressed, and depressed. It should come as no surprise then, that the use of virtual behavioral and mental health therapy has skyrocketed this year.

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    Much of this growth in the digital therapy market was cushioned by a unique business environment of waivers and relaxed regulations stemming from the coronavirus pandemic. The public health emergency declaration and the conditions created under the declaration have been a boon to the broader digital health market, resulting in yet another record-breaking funding round across Q3.

    While it is exciting to see such heavy investment and growth in digital health, there is a lingering concern about how all this growth will sustain itself in the post-pandemic environment as regulators start to figure out what pre-pandemic measures should be reinstated—and what pandemic measures should be lifted. One pandemic-specific regulatory change made headlines last week when CNBC's Christina Farr reported that Talkspace, an online therapy platform, offered to cover the legal fees and other financial penalties of therapists who continue to work across state lines, after the public health emergency ends.

    CMS is temporarily allowing mental health professionals who treat Medicare beneficiaries to do so in states in which they do not hold a medical license. Under the current rules, firms like Talkspace have been able to address a crucial aspect of patient health and wellness, serving a mental health space that has been historically underserved in the realm of clinical care.

    Virtual care is democratizing access to therapy and psychiatry and allowing patients to engage with clinicians in a way that is convenient and allows for on-demand support. Digital access to mental health care is also scalable and can help address the field's supply and demand problem as there is a critical shortage of clinicians in the industry, which is likely a key consideration in Talkspace's proposal to continue enabling clinicians to provide care across state lines.

    But we can't lose sight of the business realities at play here: Technology companies like Talkspace are seeing substantial growth in new members and revenue, and the need to grow the business from a financial perspective can sometimes overstep the boundaries of the industries they operate in. We've seen plenty of examples over the past decade of venture-backed startups that seek to expand operations as quickly as possible, bending the rules along the way. The classic tech mantra to "move fast and break things" may be inspirational for the Silicon Valley entrepreneur, but that thinking doesn’t carry as much force when entering the health care industry.

    Determining the true risk bearer

    Providing indemnification for denied claims or supporting therapists with legal fees may be a financial hit Talkspace is willing to take if their business growth offsets the expenses, but is getting in legal trouble worth it for the therapist? Who has more to lose?

    The licensed therapists on Talkspace's platform are independent contractors, working with companies like Talkspace primarily for its convenience, reducing administrative tasks while providing a steady stream of virtual clients. In terms of scalability, access, and meeting patients where they are, Talkspace's platform appears to be aligned with their providers’ objectives. But their plan here ("go ahead and see patients and we'll cover your legal costs") seems very near-sighted, and as Farr points out in the article, potentially problematic for providers over the long term.

    This is also not the first time that Talkspace has been called out for questionable business moves. Former Talkspace employees have made claims about data privacy violations and questionable advertising tactics (e.g., using burner phones to create fake customer reviews), but those allegations have been denied by company representatives.

    The ongoing need to adapt to a virtual care environment

    Talkspace's tactics may raise some eyebrows, but they do shine a light on the fact that medical licensing in the United States is not oriented to the opportunity of virtual care delivery. As mental health specialist shortages intensify, we need greater flexibility to give doctors and therapists a means of treating patients without having to constantly worry about reimbursement or potential legal challenges.

    Our nation's rising mental health troubles are real, and so is the consumer demand for mobile and online therapy that is enabled by technology companies. One of the primary value drivers of virtual care is that it isn't bound by geography or state lines—we need regulators to address that new reality. But we also need technology companies to play ball, ensuring that they are enabling care in an ethical way that serves not just their bottom line, but the needs of patients and clinicians. 

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