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Telehealth Policy Brought to the Fore in the COVID-19 Pandemic

By Vrushab Gowda

The COVID-19 pandemic has highlighted the value of telehealth as both a tool of necessity (e.g., minimizing infection risk, conserving thinly stretched healthcare resources, reducing cost) as well as of innovation.

Telehealth services have surged in recent months; in April alone, they constituted over 40 percent of primary care visits nationwide and over 73 percent of those in Boston. “Increasing Access to Care: Telehealth during COVID-19,” a recent publication in the Journal of Law and the Biosciences, dissects the issues that have accompanied the growth of telehealth and identifies further areas of potential reform.

Changes to reimbursement

The author of the article, David A. Hoffman, explains that uneven reimbursement patterns have presented a major stumbling block to telehealth initiatives, historically. Without a clear sense of economic gain, health systems lack the incentive to invest in the requisite technologies and implement them at scale.

To this end, the Centers for Medicare and Medicaid Services (CMS) introduced a number of telehealth-specific billing codes in effect for the duration of the pandemic. These cover services including critical care, home and nursing facility visits, observation, and psychological care, among others.

Hoffman writes that CMS can do more to foster the expansion of telehealth in under-resourced areas. For one, it could permit rural health centers and Federally Qualified Health Centers (FQHC) to receive Medicare reimbursement for remote patient monitoring services. Additional administrative guidance should be offered to facilitate billing code entry and claims processing.

Moreover, CMS largely requires a video connection for reimbursement; this may not be feasible in remote or low-income regions with poor internet access. Allowing for audio-based telehealth services would do much to facilitate both access and health equity.

Technological concerns and new flexibilities

Telehealth, as with conventional healthcare delivery, implicates the privacy, security, and storage of protected health information.

The Health Insurance Portability and Accountability Act (HIPAA), HIPAA Privacy Rule, and HIPAA Security Rule continue to govern this province, although the Department of Health and Human Services (HHS) has adopted a more flexible stance in the wake of COVID-19. For one, it will not penalize providers using remote communications technologies which do not fully comply with HIPAA requirements, provided they do so in good faith. This, moreover, extends to all patients, not merely those receiving treatment for COVID.

Artificial intelligence technologies will play an increasingly prominent role in remote patient monitoring, a key component of telehealth.

Generally, the U.S. Food and Drug Administration (FDA) requires premarket notification (colloquially known as “510(k)”) for modifications to approved devices. This process can prove long and complex.

In response to COVID-19, FDA has instead indicated that it will not “object to limited modifications to the indications, claims, functionality, or hardware or software of FDA cleared non-invasive remote monitoring devices that are used to support patient monitoring during the public health emergency…without prior submission of a premarket notification.” This additional flexibility should prompt further innovation in the remote patient monitoring space, which in turn could expand the scope of services offered through telehealth and provide FDA crucial information with which to set permanent policies.

Liability and licensure

Liability and licensure fall largely within the domain of a patchwork of state laws, regulations, and orders.

Two states have liability statutes that speak directly to telehealth initiatives; Hawaii requires malpractice insurance providers to cover telehealth services, and New York has carved out a liability exemption for them (barring cases of gross negligence). Others, however, are silent.

Interstate licensure requirements pose another formidable barrier to telehealth expansion. This is critical, as healthcare providers in states with low COVID burdens may be well-positioned to serve patients in states with higher prevalence.

Some states have taken affirmative steps towards achieving reciprocity. Alaska, Missouri, and Tennessee recognize out-of-state healthcare licenses; Connecticut has altogether dropped its credentialing requirements for telehealth practitioners licensed elsewhere, and New Jersey offers a “fast track” for out-of-state physicians.

Seventeen states have adopted a variant of the Uniform Emergency Volunteer Health Practitioner Act (UEVHPA), permitting out-of-state license recognition during emergencies. HHS can play a key role in encouraging these reciprocal arrangements. It should assist state leadership in creating Emergency Management Assistance Compacts (EMACs) with telehealth provisions, thereby establishing a safety valve for states in crisis and furthering the development of a national telehealth market. Further, HHS can increase its funding for Telehealth Resource Centers, training growing cohorts of providers and laying the infrastructure necessary for continued expansion.

Although it remains to be determined whether the recent regulatory flexibilities will be locked in, it is clear that parity, promotion, and coordination among disparate state frameworks are essential to growth. Telehealth is flourishing amid COVID-19, but its potential to revolutionize the delivery of care could outlast the pandemic.

Vrushab Gowda

Vrushab is a JD candidate at Harvard Law School and MD candidate at the University of North Carolina. He has previously served on the masthead of Harvard Journal of Law and Technology, as a research assistant to Deputy Dean I. Glenn Cohen, and clinical student within the Center for Health Law and Policy Innovation. Vrushab's scholarly interests focus on the legal, regulatory, and ethical dimensions of digital health products.

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