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Law and Telemedicine in the Time of Covid-19

Published Monday, May 11, 2020
by Tara Sklar, JD, MPH

 

The long-awaited promise of telemedicine may finally be realized as a response to Covid-19.

For decades, advocates hailed telemedicine as the way forward to improve access and reduce cost, while maintaining high-quality care. There have been steady gains in investment and growth across the country, and an increasing number of studies suggest that for certain services, namely chronic care management and mental health services, telemedicine may be superior to in-person care. Specifically, studies showed better health outcomes through improved medication adherence, integration of medical tests, and reduced hospital readmissions. However, even with these positive steps, it would be a stretch to claim that telemedicine had transformed the US healthcare system and, in large part, that is because of legal barriers that were in place prior to Covid-19.

 

In the Fall of 2019, my colleague at the University of Arizona James E. Rogers College of Law, Christopher Robertson, and I identified three major legal barriers in federal and state laws that were inhibiting telemedicine utilization.We reviewed (1) establishment of a healthcare relationship, (2) state licensure laws, and (3) reimbursement. We focused on these areas because of the legal ambiguities or inconsistencies, which varied across the states. Arguably, these variations could hinder telemedicine operators’ ability to leverage resources across state lines for efficient scalability without necessarily improving quality of care. The article is  entitled, “Telehealth for an Aging Population: How Can Law Influence Adoption Among Providers, Payors, and Patients?” and is forthcoming in the American Journal of Law & Medicine.

Aging Population

We proposed that the growing aging population would be the driver to achieve greater utilization of telemedicine services largely because of changes with reimbursement under Medicare Advantage (MA). The Center for Medicare and Medicaid Services (CMS) issued a rule that became effective at the start of 2020, which relaxed geographic and originating site requirements to allow reimbursement for telemedicine services received directly in the home, irrespective of whether the MA beneficiary lives in a rural or urban area. In addition, many state Medicaid programs, including Arizona’s AHCCCS, reported plans to expand reimbursement, especially around long-term care services and for home healthcare.

We found that older adults, aged 65 or over, represented a large market that was unfamiliar with telemedicine. A 2018 study found 16-times greater telemedicine utilization among adults aged 24-44 and a 2019 survey reported that while half of older adults would be interested in a telemedicine visit, only four percent had one in the last year. These findings highlight major growth opportunities, particularly given telemedicine’s demonstrated ability to effectively manage chronic conditions, where 80 percent of older adults have at least one chronic condition, and 77 percent have at least two.

We had no idea that COVID-19 would be the watershed event that would bring the long-anticipated discussion of how to expand telemedicine and care for the aging population to the forefront of this pandemic.

Legal Barriers

Our recommendations for a more unified approach to telemedicine regulation incorporates core bioethics principles of doctor-patient relationship, competence, patient autonomy, as well as population-wide questions of resource allocation and access. In the time of Covid-19, many lawmakers have embraced some of these principles and allow greater flexibility.

Specifically, in how a healthcare relationship may be established outside of a “hands on” visit (see e.g., Maryland’s Governor amended an order to allow formation of a provider-patient relationship to include audio-only calls). In addition, many states relaxed licensure laws and reimbursement under CMS has expanded to include all Medicare beneficiaries (approx. 56 million people). Section 3701 of the CARES Act went even further to encourage telemedicine use by removing cost-sharing exposure under Medicare for any telemedicine services, irrespective if related to COVID-19.

Conclusion

The threat that Covid-19 poses to the elderly population and a resource-strained healthcare system greatly outweighs some of the former legal barriers to telemedicine expansion. The new economies of scale that have now undoubtedly been achieved have the opportunity to bring the telemedicine promise of - greater access, improved health outcomes, and lower costs – and would benefit from using core bioethics principles as a guide in this new era of virtual care. 

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