Analysis

Telehealth's Not Getting Switched Off After COVID-19 Crisis

By Kevin Stawicki
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Law360 (April 10, 2020, 7:54 PM EDT) -- The coronavirus pandemic has forced the federal government to lift barriers to telemedicine so patients can get care without leaving home. Those regulatory changes may be temporary, but experts say telehealth is here to stay.

As the novel coronavirus continues its deadly march across the country, patients have been able to monitor their health without setting foot in a medical office or hospital through an unprecedented regulatory revamp of telehealth at the federal and state levels.

In normal times, Medicare only pays clinicians for telehealth services like routine visits, requires patients to travel to designated sites to obtain virtual care and imposes limits on what communication devices can be used, but the stroke of the president’s pen tossed all of those obstacles aside and provided a glimpse into what the future of telehealth could look like.

“If telehealth can do so much during these times, then obviously it can do a lot more on the day-to-day delivery of health care when we’re not under a public health emergency,” Polsinelli PC shareholder Kyle Vasquez told Law360. “Unfortunately, we had to go through this wide-scale pandemic to get the attention of payers and state agencies. But I think there will be long-term changes to telehealth, as it has shown how it can add value during difficult times.”

Federal regulators and lawmakers have for years resisted pressure to expand coverage for telehealth services, voicing concerns about potentially enormous new costs and the quality of care delivered via phone calls and Skype. But as the highly contagious COVID-19 forced people to practice social distancing, leaving office visits out of the question for most, the government’s hand was forced.

The unprecedented changes started rolling out as early as March 6 when President Donald Trump signed the Coronavirus Preparedness and Response Supplemental Appropriations Act, which empowered U.S. Department of Health and Human Services to waive certain Medicare requirements to expand access to telehealth and reimburse providers for virtual office visits.

Telehealth access grew further on March 13 when Trump declared the pandemic a national emergency, allowing HHS to temporarily drop requirements for telehealth consultations, let providers work in states where they don’t have licenses and allow rehabilitation centers to accept patients without a minimum hospital stay.

On March 17, HHS's Office for Civil Rights waived potential penalties for violations of the Health Insurance Portability and Accountability Act resulting from "good faith provision of telehealth."

In the days that followed, HHS cleared hospitals to share telehealth equipment, permitted emergency departments to use telehealth for the assessment of patients’ treatment needs and extended Medicare coverage to more than 80 additional services like radiation management and physical therapy.

And by March 30, the Federal Communications Commission was funneling $200 million into not-for-profit and teaching hospitals, clinics and local health agencies to support telehealth as part of the Coronavirus Aid, Relief and Economic Security Act.

While the government has stressed that the revamp will be over as fast as COVID-19 passes, experts say some of the changes are here to stay.

“Medicare has been clear the waivers are only for the public health crisis that we’re in and don’t expect these to stay, but I don’t think that’s going to be reality. The train is out of the station,” Allison Shuren, co-chair of the life sciences and health care regulatory practice at Arnold & Porter, told Law360. “Now that we’ve used these services and have millions of people who are comfortable with them on the health care provider and patient side, there’s going to have to be a conversation.”

Once the pandemic is in the rearview mirror, HHS will have to engage in notice-and-comment rulemaking to permanently implement the measures it has already utilized, but that doesn’t mean the basic intent of the regulatory changes will be tossed aside, Shuren said.

“What’s being built out now, even though it’s in a rush, will not just get thrown in the trash afterwards,” said T.J. Ferrante, senior counsel at Foley & Lardner LLP and a member of the firm’s telemedicine and digital health industry team. “It’s going to be the toe that dips in the water to get a lot of virtual care programs up and running.”

Changes in Medicare reimbursement and the standard of care are likely to stay in place because of the real-world impact that has already been made by the telehealth rollout, Ferrante said.

“If you’re seeing a doctor using virtual care, they’re out of state, they don’t have a state license and they’ve been treating you for the past 30 days, I don’t think all of a sudden that’s going to be cut off without any continuity-of-care consideration,” he said.

And commercial payers that have previously shown reluctance have also been forced to join the march toward telehealth, with insurers like Aetna and Blue Cross Blue Shield recently announcing expanded access to telehealth during the pandemic.

“Payers are not going to be able to hide anymore,” Shuren said. “It’s going to be a fascinating time once we get on the other side of this disaster.”

But while attorneys hope telehealth's success at the federal level will stay the same in the wake of COVID-19, they’re less optimistic that states will hop on the bandwagon.

“There are plenty of states where their licensing rules, scope-of-practice rules and medical practice acts are not up to speed,” Vasquez said. “We need clarity for those who want to do services across state lines.”

Most states don't allow out-of-state physicians to practice within their borders without state licenses, even during a public health emergency. In response to that lack of uniformity, HHS Secretary Alex Azar and the National Governors Association recently voiced support for broader use of telemedicine during the pandemic. It remains to be seen whether states will make changes, and there’s likely little room for the federal government to step in to craft a uniform standard for licensing.

“At least right now, we don’t see any federal preemption,” Vasquez said. “It’s within the states’ hands. The practice of medicine is a politically sensitive area.”

Georgia, Iowa, Missouri and Nebraska are among states with loose licensing standards and don't appear to have a lot of restrictions in place for telemedicine. They could be a model for other states, Vasquez said.

“If states see others taking action and think they’re behind on the issue, you may see some momentum,” he said.

“I’ve always viewed those really as turf issues and money revenue generators for boards of medicine and boards of nursing,” Shuren said of states’ varying policies regarding telemedicine. “Should we be rethinking our infrastructure for licensure around telehealth to be less restrictive than it is in some of the states now?”

Despite its newfound glory, telehealth still faces thorny questions about patient privacy, medical malpractice insurance costs and payment parity among private health insurers. But what has been established over the past few weeks has laid out a strong case for how the industry can proceed, experts say.

Riverwood Healthcare Center in the 2,000-person town of Aitkin, Minnesota, is one of many providers that quickly mobilized telehealth to treat patients as stay-at-home mandates and travel restrictions nationwide made in-person treatment inadvisable.

The rural hospital selected a platform — Zoom for Business — that it had already been using for meetings, implemented the telehealth network, perfected workflow and within days started treating patients from 1 to 96 years old, according to a case study released by the American Hospital Association.

What unfolded at Riverwood is a reflection of how hospitals, physician practice groups and small-town family doctors have responded to the crisis after the federal government rolled out the measures to help telehealth get off the ground.

“I’ve never seen anything like this before in the whole health care industry,” Ferrante said. “It’s showing the world what telehealth can do. There are a lot of people who have argued against telehealth. A lot of those arguments are going to be less credible now that we’ve seen it in action.”

--Editing by Aaron Pelc.

For a reprint of this article, please contact reprints@law360.com.

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