Locke Lord QuickStudy: Telemedicine: What Happens When the Emergency is Over?

Locke Lord LLP
June 16, 2020

The use of telemedicine has increased to an extraordinary degree during the coronavirus pandemic.  The reasons for this are clear.  Patients are reluctant to travel to health care facilities and doctors’ offices for fear of exposure to the virus.  Clinicians, as well, see health benefits in limiting face-to-face contact with persons who might well be infected, both for themselves and for their patients.  Some observers suggest that telemedicine use has increased by more than an order of magnitude (i.e. at least 1000 percent) or even that a majority of encounters are now taking place virtually. 

Statistics released by the U.S. Council on Economic Advisors indicate that from March 14 to April 1, 2020, daily telemedicine claims for upper respiratory infections using ICD-10 diagnosis codes from private insurance increased nearly 12 times from the daily average over the previous month. According to the Council, upper respiratory infections were chosen for examination because this diagnosis label best represented COVID-19-related illnesses prior to the introduction of a diagnosis code for COVID-19 on April 1.  Blue Cross Blue Shield of Massachusetts announced in April, 2020 that it has processed 250,000 telemedicine claims since changing its policy to both expand coverage for telephone and virtual visits and reimburse them at the same rate as in-person visits during the COVID-19 state of emergency. The March telemedicine claims figure is a 3600% increase over February and a 5100% increase over the monthly average for 2019.

Many providers, patients and expert commentators view this trend as a permanent change in our healthcare system.  Statements like “patients won’t want to give this up” or “you can’t get the toothpaste back in the tube” are commonly heard.  Longtime proponents of increased use of telemedicine technologies see recent events as the harbinger of permanent change.  

The explosive growth of telemedicine has been fueled not just by its advantages during the pandemic, or by convenience and flexibility it offers, but also by a variety of enabling regulatory changes, most of which are directly linked to the continued existence of national and state emergency declarations and orders.  Upon the cessation of these regulatory changes, many of the barriers that inhibited the growth of telemedicine before the pandemic will be restored.

The list of enabling waivers is long.  They include:

  • Policies adopted by medical boards to include telemedicine within the standard of care, including for prescribing;
  • Relaxed licensing rules permitted physicians licensed in one state to treat patients located in another state, with limited or no oversight by the state in which the patient is located;
  • State orders mandating coverage and reimbursement on parity, or near parity, with face-to-face encounters when medically appropriate;
  • CMS waivers relating to remote visits with out-of-state practitioners for coverage and payment purposes;  
  • CMS rules relaxing the conditions for coverage and payment for telemedicine, including “location requirements,” allowing services to be provided to Medicare patients in their homes;
  • Relaxation of any requirement of an established patient relationship prior to the use of telemedicine, based on the Coronavirus Preparedness and Response Supplemental Appropriations Act; 
  • Expansion of coverage of telemedicine by state Medicaid programs, , including waivers related to the use of purely telephonic consultations; and 
  • Announcements by the federal Office of Civil Rights that it would exercise discretion with respect to enforcement of its privacy and information security rules in order to promote the use of the telemedicine during the emergency.

Even as the orders closing non-essential businesses are relaxed across the United States, and the economy “opens up,” the public health rationale for the increased use of telemedicine remains for the time being.  Absent a vaccine or a dramatic reduction in prevalence of the virus, the risk of face-to-face care, especially for vulnerable individuals, will remain.  It seems reasonable to assume that the emergency declarations and waivers will remain in force long after the restrictions on businesses and other day-to-day activities have been removed.

At some point, however, the emergency will be terminated, and the wavers will necessarily end.  At that point, many of the regulatory and payment barriers to telemedicine will be back in place.  For those who want the use of telemedicine to continue, key questions must be considered, and key action steps should be considered now.

Will private payers decide to continue coverage and payment policies in place during the pandemic?  If not, will state or federal governments mandate continued coverage at parity or near parity with face to face encounters?  What will Medicare do about telemedicine expansion in a post-emergency environment?

Will state medical boards revert back to pre-pandemic policies, or will the practice of telemedicine across state lines become generally acceptable?

More fundamentally, will medical boards continue to recognize remote encounters as consistent with the standard of care for a wide variety of patient encounters, or will prior standards prevail? 

As the economy begins to reopen, providers, payers and government regulators should evaluate the impact of telemedicine on care generally, not just as a pandemic safety measure.  Is telemedicine effective?  Has it been meeting the needs of providers, patients, and payers?  Are there uses or settings that have been particularly effective, or others in which telemedicine has been less effective, despite its safety advantages?  Have there been risks, either clinical risks or information security risks that have not been addressed?  Ideally, providers, payers and regulators would carry out joint evaluations of telemedicine using well-understood and agreed upon criteria to answer these questions.

Objective evaluation, including input from patients, should guide our next steps.  Healthcare innovation is a choice, and it should be me made intentionally and thoughtfully. 

Please visit our COVID-19 Resource Center often for up-to-date information to help stay informed of the legal issues related to COVID-19.