By Matt Fisher, Esq
Twitter: @matt_r_fisher
Host of Healthcare de Jure – #HCdeJure
Telehealth (and the subset telemedicine) have been touted as the technology of the future or the moment for a number of years now. Despite the continued recent promise, telehealth is not a new technology. It has been around in one form or another for a number of years since it arguably refers to any remote delivery of care. In fact, legislation requiring coverage goes back a number of years too, including California first legislating coverage in 1996. Despite the long history and continual amount of hype, adoption at best has lagged far behind. That is changing drastically during the COVID-19 pandemic.
Telehealth use is finally booming in ways that have been predicted for years. Physician practices of all types of quickly implementing the ability to interact with patients remotely and trying to choose which service to partner with. Utilization of telehealth is being driven by necessity since patients are being advised (if not told outright) that going to a physician’s office or any other healthcare facility is not advisable because of the risk of COVID-19 exposure or infection is so high. Recognizing that healthcare cannot be completely skipped, telehealth is stepping in to enable the continued interaction between clinicians and patients.
The COVID-19 pandemic is clearly an impetus for the now rush into telehealth, but so is the accompanying change in reimbursement position by Medicare (and many commercial insurance companies). To be specific, the change in stance is to both (i) provide widespread reimbursement for telehealth services, and (ii) set the reimbursement at levels equal to in-person services. The access to funds at an equal level is a prime driver for physician practices and others to adopt telehealth. With co-equal reimbursement comes the hope of not losing all revenue and optimistically being able to keep the doors open.
In conjunction with majorly increasing reimbursement, a blind eye is also being turned to privacy and security requirements for telehealth platforms. The description is a bit over the top but helps to underscore that the Centers for Medicare and Medicaid Services are allowing the use of non-HIPAA compliant platforms, meaning fully consumer services like FaceTime and Facebook Messenger. Given the extreme ease of accessing such services since the vast majority of people have those services already installed on multiple devices, many organizations are choosing to deliver telehealth through these non-healthcare specific services. Enabling patient access is positive, but entrenching the use of non-compliant technology could lead to unintended complications down the road. At the same time, many compliant services that are nearly as easy to implement are available, so why not go in the right direction from the start?
With the current landscape set up, what will the post-COVID-19 crush bring for telehealth? That is a question very much open for debate. Almost all of the changes that have driven the use of telehealth during the pandemic are premised upon a declared state of emergency being in place. Specifically, a declared state of emergency opens up special powers to the president or state governors to implement executive orders making immediate changes to statutes and regulations. Those immediate changes are the basis for flipping the script on telehealth. The quick-change is great, but it also means that once the emergency ends, then the previously existing normal will return (even if a slow landing period is laid out). If the previous normal comes back that will mean telehealth going back to the promised, but non-supported means of delivering healthcare services.
With a proving ground being laid out, the current time could prove fertile ground for developing clear and convincing arguments to modify the statutory and regulatory landscapes. For instance, if clear data and evidence can be developed that demonstrate the beneficial impact of dividing care into appropriate delivery settings, then the role of telehealth becomes better defined and necessary. Taking the evidence to result in change will mean engaging in advocacy. It cannot be assumed that legislatures or agencies will proactively consider how to make current changes permanent. From the regulatory perspective, such permanence could well be beyond the power of the agency without new legislation being enacted. Some organizations are already thinking along these lines and putting together the plans for seeking full-scale change. Ideally, advocacy efforts will be coordinated among many groups and common messages crafted.
What permanent changes should be obtained though? Equal reimbursement is an obvious choice. If telehealth provides a high-quality, effective, and efficient service, why should it be denied full coverage? As implied, the effective component means identifying the appropriate time and place for telehealth. It cannot be a wholesale replacement for in-person care since certain services absolutely require a face-to-face encounter between a clinician and a patient. Thinking even more broadly, the equal reimbursement can help with value based care efforts too. If a patient can receive services that meet needs without coming to an office and more quickly, then appropriate care may be obtained more timely, which in turn addresses an issue sooner. Theoretically, that means a reduced need for accessing services, going to the heart of value based care. Such a line of thinking could produce more savings.
As suggested, reimbursement should be a relatively easy request for change. The relaxation of privacy and security requirements is one that may draw interest, but should not be made permanent. Patients and other individuals expect sensitive healthcare information to be afforded certain levels of protection. Protection cannot be guaranteed if data are not protected and may be used for any number of purposes by the developer or owner of the platform. Given the ready availability of compliant services, efforts should be made to push practices into adopting just such a platform.
The bigger concern about the future is the issue of getting organizations to adopt a second telehealth platform when HIPAA comes back into play. If both clinicians and patients get used to a certain workflow, it could be troublesome to remember to use a different platform or get either or both sides to transition to a new place. If a new routine is developed, then forcing change can be problematic. Such issues are particularly concerning. The easiest path is not always the best and will need to be altered if telehealth use will become more permanent.
While the future of telehealth remains uncertain, clear efforts can be made now to push for permanent change. Despite the stress of staying above water with COVID-19, plans should be set now to keep the more beneficial aspects of the emergency situation.
This article was originally published on Mirick O’Connell’s Health Law Blog and is republished here with permission.