Young male doctor in telehealth concept

Telehealth amid COVID-19: What Health Care Providers Should Know

By Adriana Krasniansky

COVID-19 stands to be a watershed moment for telehealth adoption within the U.S. healthcare system.

In response to the COVID-19 pandemic, the Trump administration and the Centers for Medicare & Medicaid Services (CMS) (part of the Department of Health and Human Services, or HHS) announced expanded Medicare telehealth coverage for over 80 health services, to be delivered over video or audio channels. Additionally, the HHS Office for Civil Rights (OCR) announced it would waive potential Health Insurance Portability and Accountability Act (HIPAA) penalties for good faith use of telehealth during the emergency. Both measures are designed to enable patients to receive a wider range of health care services remotely, reducing clinical congestion and limiting transmission of the virus. 

In the midst of this emergency situation, health care providers can take measures to consider the ethical and legal aspects of tele-practice as they get started. This article is a short primer to help medical professionals understand telehealth in this moment, navigate regulations and technology practice standards, and choose technologies to support quality patient care. Read More

The Week in Health Law podcast logo twihl.com

New TWIHL with Wendy Mariner and Michael Ulrich

My guests are Wendy Mariner and Michael Ulrich. At Boston University School of Public Health, Mariner is the Edward R. Utley Professor of Health Law, Professor in the Center for Health Law, Ethics & Human Rights, Professor in the Department of Health Law, Policy & Management, and Director of the JD-MPH dual degree program. She is also a Professor of Law at Boston University School of Law and Professor of Medicine at Boston University School of Medicine.

Ulrich is a Professor of Health Law, Ethics, & Human Rights at the Boston University School of Public Health. His scholarship focuses on the intersection of public health, constitutional law, bioethics, and social justice, with an emphasis on the role of law in the health outcomes of vulnerable and underserved populations. Previously he was a Senior Fellow in Health Law, & Lecturer in Law at Yale Law School and a bioethicist in the Division of AIDS at the National Institutes of Health.

Our discussion concentrates on two aspects of the COVID-19 pandemic: (1) where the healthcare system is as far as capacity and resources, the impact of new federal legislation, and what else is needed and (2) what is the legal valence (if any) of terms such as “shelter in place” or “quarantine” and how will we calibrate more serious infringements on liberty such as lockdowns.

The Week in Health Law Podcast from Nicolas Terry is a commuting-length discussion about some of the more thorny issues in health law and policy. Subscribe at Apple Podcasts or Google Play, listen at Stitcher Radio, SpotifyTunein or Podbean.

Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find me on Twitter @nicolasterry or @WeekInHealthLaw.

LOMBARDIA, ITALY - FEBRUARY 26, 2020: Empty hospital field tent for the first AID, a mobile medical unit of red cross for patient with Corona Virus. Camp room for people infected with an epidemic.

Pandemic Guidelines, Not Changed Malpractice Rules, Are the Right Response to COVID-19

By Valerie Gutmann Koch, Govind Persad, and Wendy Netter Epstein

On March 17, the Washington Post published an op-ed by Dr. Jeremy Faust, titled Make This Simple Change to Free Up Hospital Beds Now. In it, he argues that cities and states should “temporarily relax the legal standard of medical malpractice,” in order to encourage hospitals to admit, and physicians to treat, the patients who need help during the COVID-19 pandemic.

In a tweet promoting the piece, Dr. Faust expresses concern that in the absence of such a legal change, “docs will keep doing ‘usual’ low yield admissions.”

Read More

Photograph of a doctor in blue scrubs overlaid with an illustration of a padlock

Anonymity in the Time of a Pandemic: Privacy vs. Transparency

By Cansu Canca

As coronavirus cases increase worldwide, institutions keep their communities informed with frequent updates—but only up to a point. They share minimal information such as number of cases, but omit the names of individuals and identifying information.

Many institutions are legally obligated to protect individual privacy, but is this prohibition of transparency ethically justified?

Some even go a step further and ask you, an individual in a community, to choose privacy over transparency as well. Harvard—alongside with  Yale, Chicago, and Northwestern—requests you to “Please Respect Individuals’ Privacy. Anonymity for these individuals remains paramount. Please respect their privacy—even if you believe you know who they are—so they can focus completely on their health” (emphasis in original).

But do you have an ethical obligation to do so at the time of a pandemic?

Read More

corridor with hospital beds

3 Human Rights Imperatives for Rationing Care in the Time of Coronavirus

By Alicia Ely Yamin and Ole F. Norheim

Scholarly and official statements and publications regarding human rights during the current pandemic have largely reiterated the important lessons learned from HIV/AIDS, Zika and Ebola, such as: engagement with affected communities; combatting stigma and discrimination; ensuring access for the most vulnerable; accounting for gendered effects; and limiting rights restrictions in the name of public health.

But there is a notable silence as to one of the most critical decisions that almost every society will face during the COVID-19 pandemic: rationing scarce health care resources and access to care.

Read More

Call for Submissions: Journal of Law and Biosciences, “Law and Ethics in the Time of a Global Pandemic”

The Journal of Law and the Biosciences (JLB) is soliciting essays, commentaries, or short articles for a special issue on “Law and Ethics in the Time of a Global Pandemic.” For this issue we especially encourage shorter pieces, of roughly 1500 to 5000 words. If any particular aspect of how this pandemic will affect some part of the law—from lease terms to courtroom procedures to constitutional questions about mandatory testing—intrigues you, write it up and send it in.

Read More

hospital equipment, including heart rate monitor and oxygen monitor functioning at bedside.

The Ethical Allocation of Scarce Resources in the US During the COVID-19 Pandemic: The Role of Bioethics

By Beatrice Brown

Critical resources for handling the COVID-19 pandemic, including ventilators and ICU beds, are quickly becoming scarce in the US as the number and density of infections continue to rise. Leading bioethicists have crafted guidelines for the ethical rationing of these scarce resources during the pandemic. On March 16, The Hastings Center published “Ethical Framework for Health Care Institutions and Guidelines for Institutional Ethics Services Responding to the Novel Coronavirus Pandemic,” detailing three ethical duties for health care leaders: 1) duty to plan; 2) duty to safeguard; and 3) duty to guide. The report also contains a compilation of materials on resource and ventilator allocation.

More recently, on March 23, two insightful pieces were published in the New England Journal of Medicine: “The Toughest Triage — Allocating Ventilators in a Pandemic” by Truog, Mitchell, and Daley, and “Fair Allocation of Scarce Medical Resources in the Time of Covid-19” by Emanuel et al. These two pieces complement each other well and lay a crucial foundation for the inevitable resource allocation that clinicians and hospitals will be forced to practice in the coming weeks. As such, here, I summarize the central takeaways from these two articles while understanding their recommendations in tandem, as well as reflect on the importance of bioethics during these times of medical crisis and how the work of this field must adapt to changing circumstances. Read More

Preemption, Paid Leave, and the Health of America

As the United States continues its response to a seemingly inevitable coronavirus epidemic, experts in law and public health are stressing the importance of supportive social safety nets to ensure an equitable and fair response to the virus’s spread.

If you are one of the nearly two million Americans who works for minimum wage, for much of the service industry, or in the contingent labor force, a situation that forces you to stay home from work – because of illness, or government- or self-imposed quarantine or social distancing measures – could create dire financial circumstances and inhibit measures to mitigate the impact of an infectious disease like COVID-19.

Read More

Gloved hand holding medical rapid test labeled COVID-19 over sheet of paper listing the test result as negative.

Controlling the Novel Coronavirus: Should we have stopped the COVID-19 coronavirus more effectively? Could we still?

By Margaret Battin, Leslie Francis, Jay Jacobson, and Charles Smith

What if, instead of closing airports, shutting down trains and buses, quarantining travelers from China, and enclosing 50 million people inside the city of Wuhan and Hubei province, we had a sophisticated technology that could identify travelers who might spread an emerging infectious disease? This question is not hypothetical. We do have an available technology: polymerase chain reaction (PCR) rapid testing, one among several forms of nucleic acid amplification technology.

But PCR rapid testing has been deployed imperfectly at best, especially in the United States. The initial case of what is thought to have been community transmission in the United States was not tested for several days. The result was preventable exposures to infection of health care workers and potentially others. Testing criteria were set very narrowly. Rapid test kits designed by CDC did not work successfully because of problems with one of the reagents. On February 29, the FDA issued guidance allowing laboratories CLIA-certified for high complexity testing to use tests they had developed and validated before receiving emergency use approval.

Read More