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In an age when social distancing shrouds every aspect of human interaction and working from home has become the new norm, telehealth has become an increasingly important mode for providing health care. Telehealth is a form of remote health care that substitutes face-to-face consultations with digital checkups and communication technologies.[1] Telemedicine is a subset of telehealth which refers specifically to digital clinical services.[2]

While telehealth has mostly been used to provide health care services to rural areas, manage and monitor health data in nursing homes, and facilitate emergency services, its influence and popularity has expanded since the COVID-19 nationwide quarantine which approximately began in March 2020.[3] Because of the lack of Personal Protection Equipment (PPE) for medical personnel, crowding of hospitals, and mandatory lockdowns, visits to a doctor’s office or a patient’s home have become less desirable or even practical. Under such circumstances, telehealth has been increasingly relied upon.[4] Expanding access to telehealth during the pandemic has benefited patients and practices alike, even “saving at least one [medical practice] from bankruptcy”.[5]

With the rising popularity of telehealth, delegates now face the challenge of preserving the services’ flexibility while circumventing unintended consequences, such as insurance fraud and conflicts of regulations across states when enacting pertinent regulations and laws.[6] Recent policy changes during the COVID-19 pandemic have reduced barriers to telehealth access and promoted the overall use of telehealth.[7] In a rule allowing Medicare Advantages Plans by Centers for Medicare and Medicaid Services (CMS), effective 2020, telehealth benefits are taken into the basic benefit packages and beneficiaries are now allowed to receive the telehealth services at their home.[8],[9] Medicaid programs are administered at the state level and states can choose whether or not to cover telehealth services as an alternative to traditional in-person methods of care.[10] States can also determine the capacity and approach in regulating health-care delivery that are required for reimbursement, such as “establishing the provider-patient relationship, the types of services available for coverage (e.g., behavioral health services, primary care), and the types of modalities that may be used, which all impact acceptable delivery of care, and federal and state enforcement risk”.[11] For example, Tennessee lawmakers reacted quickly to make changes, such as reducing in-person continuing education requirements for healthcare workers and increasing the number of clinicians allowed to provide telehealth.[12]

Two challenges the new telehealth-related regulations will face are collaborating with insurance companies and containing telehealth fraud. Major insurers like UnitedHealth Group Inc. and Anthem Inc. are starting to roll back the terms of telehealth coverage from what was launched in the beginning of the year, taking different approaches to covering remote care and telehealth services.[13] The Wall Street Journal observed that, according to doctors and hospital officials, the complex rules are “leading to confusion”—and the cost-sharing charges create concern that patients, faced with an increased financial burden for telehealth, might delay or avoid visits.[14] Telehealth fraud already existed prior to the COVID era and is calling for more attention from lawmakers and enforcement as the service expands to cover a broader population. In February 2020, the Department of Justice (DOJ) announced its charge against telehealth companies for defrauding Medicare by fraudulently soliciting insurance coverage information and prescriptions from consumers across the country.[15],[16] Other forms of telehealth fraud include practitioners offering shorter telehealth patient-visits to maximize payment, or billing more visits than are possible in a day.[17]

In November 2020, the AMA House of Delegates reached a policy resolution that tasked the organization, in addition to providing access to telehealth devices and services, to urge the federal government, CMS, states, and insurers to “adopt clear and uniform laws, rules, regulations, and policies relating to telehealth services that provide equitable coverage that allows patients to access telehealth services wherever they are located."[18] After the California v. Texas hearings at the Supreme Court earlier this month, while sources have identified signs hinting that the court might be reluctant to substantively strike down the Affordable Care Act, the Court's final decision remains uncertain.[19] On the administrative end, President-elect Joe Biden has emphasized the importance of keeping the temporarily expanded Medicare program even after the public health emergency by claiming that, once inaugurated, he and Vice President-elect Kamala Harris will "do everything in [their] power to ease the burden of healthcare . . . by building on the ACA with a dramatic expansion of healthcare coverage and bold steps to lower healthcare costs."[20] Analysts believe that Biden’s statement signals the new administration’s commitment to support the growth of telehealth and expanding digital health users.[21] The American Telemedicine Association (ATA) similarly called on policymakers to expand access to telehealth in its November statement: “During the past four years, the current administration has made many positive changes to Medicare policy to support telehealth. We are very encouraged that President-elect Biden has been on the record in support of telehealth and its continued expansion, and we look forward to working with his administration and with Congress in 2021.” Telehealth, which is expected to keep growing as the lockdown continues, will likely remain a significant part of the modern health care system even after the era of COVID-19.

Footnotes

[1] https://www.mayoclinic.org/healthy-lifestyle/consumer-health/in-depth/telehealth/art-20044878

[2] https://www.healthit.gov/faq/what-telehealth-how-telehealth-different-telemedicine

[3] https://www.cdc.gov/chronicdisease/resources/publications/factsheets/telehealth-in-rural-communities.htm

[4] https://www.natlawreview.com/article/time-checkup-recent-federal-efforts-regarding-telehealth-part-i

[5] https://www.medpagetoday.com/meetingcoverage/ama/89786

[6] Id.

[7] Bashshur R, Doarn CR, Frenk JM, Kvedar JC, Woolliscroft JO. Telemedicine and the COVID-19 Pandemic, Lessons for the Future. Telemedicine and e-Health. May 2020.571-3. http://doi.org/10.1089/tmj.2020.29040.rb

[8] https://www.federalregister.gov/documents/2019/04/16/2019-06822/medicare-and-medicaid-programs-policy-and-technical-changes-to-the-medicare-advantage-medicare

[9] https://www.govinfo.gov/content/pkg/FR-2020-04-06/pdf/2020-06990.pdf

[10] https://www.medicaid.gov/medicaid/benefits/telemedicine/index.html

[11] https://www.law.com/njlawjournal/2020/11/04/doj-and-hhs-oigs-2020-health-care-fraud-takedown-focus-on-telefraud/

[12] https://www.wsmv.com/news/health/healthcare-providers-push-for-law-changes/article_5cc46e54-238e-11eb-a66e-cfbc698fde55.html

[13] https://www.wsj.com/articles/as-covid-19-cases-rise-insurers-reduce-coverage-for-virtual-doctors-visits-11601494901?mod=article_inline

[14] Id.

[15] https://www.law.com/njlawjournal/2020/11/04/doj-and-hhs-oigs-2020-health-care-fraud-takedown-focus-on-telefraud/, supra note 12.

[16] https://www.justice.gov/opa/pr/national-health-care-fraud-and-opioid-takedown-results-charges-against-345-defendants

[17] https://www.healthaffairs.org/do/10.1377/hblog20200715.454789/full/

[18] https://www.ama-assn.org/system/files/2020-11/nov20-ref-com-b-annotated.pdf

[19] See "California v. Texas." Oyez, www.oyez.org/cases/2020/19-840#!. Accessed 29 Nov. 2020.

[20] https://www.medpagetoday.com/washington-watch/repeal-and-replace/89596

[21] https://www.medisafe.com/what-the-biden-administration-means-for-digital-health/?lang=de