Where telemedicine is headed now that the PHE has ended

The COVID-19 public health emergency came to an end on May 11. This change is yet another signal that the country is working to move past the pandemic, which falls in line with recent moves by the federal government to move the pandemic to a more controlled phase. This also happens to coincide with the World Health Organization declaring an end to the COVID-19 global health emergency.

What can be expected in healthcare and health IT now that the PHE has ended, and what does this mean for the future of telehealth? Further, what should CIOs and other health IT leaders at hospitals and health systems be doing to address new telemedicine challenges?

We interviewed Chris Raphaely, co-chair of the healthcare practice group at Cozen O’Connor, to get answers to these and other questions. Cozen O’Connor is a research and consulting firm with practices in litigation, business law and government relations. Its attorneys have experience operating in all sectors of the economy with a diverse client list including global Fortune 500 companies, middle-market firms, startups and high-profile individuals.

Q. What does the end of the public health emergency mean for the future of the healthcare industry?

A. The end of the PHE means different things for so many different sectors of the healthcare system. The fact is nothing that dramatic happened on the day the PHE ended. A few of the more-narrower COVID-related flexibilities actually ended on May 11, but many others, like cross-state licensing waivers, were rolled back some time ago, and many will continue for some time, if not permanently.

The one thing I think we can say about the end of the PHE that applies to the industry as a whole is that the cause of the worst crisis this country’s health system has ever faced is over, at least as far as the federal government is concerned.

While in many ways healthcare consumers benefited from increased access to healthcare services during the pandemic, the pandemic revealed critical gaps in our emergency response system, and it was devastating to many of our providers, particularly hospitals, even with the federal government pouring billions of dollars into the system to help them.

With the official end of the pandemic, my hope for the industry is that policymakers take the opportunity to address systemic problems that the pandemic brought to the fore.

From a consumer perspective, it will mean a pullback compared to the expanded access to items, services and payment sources we experienced throughout COVID, but not entirely and not immediately. Some of those expansive measures, like expanded Medicare reimbursement for telehealth, will remain, at least temporarily, and others, like continuous Medicaid enrollment, will be phased out entirely in the next few months.

Q. What does the end of the PHE mean for the future of telemedicine?

A. Again, I don’t think the end of the PHE in and of itself is that significant here on a day-to-day operational basis. There likely will be a rollback of some of the flexibilities afforded patients and providers with respect to telemedicine, specifically for the reality of COVID, and that rollback may accelerate somewhat with the end of the PHE, but that will still happen over time.

For example, Medicare reimbursement of telemedicine will continue by and large as it did during COVID until the end of 2024. This is important because Medicare reimbursement policy obviously impacts Medicare beneficiaries directly, but it also acts as a bellwether as to coverage and payment policy for commercial plans.

Importantly, under these continued flexibilities, Medicare reimbursement will remain available until 2024 for telemedicine for patients in all parts of the country, not just rural areas, and patients will continue to be able to receive telemedicine in their homes.

As things currently stand, with the caveat that things may very well change, after 2024 these flexibilities will be scaled back and will essentially only apply to mental health services.

One of the few telehealth rule changes that was slated to change on May 11 itself was the FDA’s rule regarding telehealth that would have limited e-prescribing without an in-person consultation only to Schedule III-V non-narcotic controlled substances and buprenorphine, but the proposed rule was met with such robust commentary that eight days before the end of the PHE, the FDA announced that the e-prescribing rules in place during the PHE will remain in place until further notice.

I think this is indicative of the fact that the end of the PHE is not a “drop dead” date for many of these flexibilities, and more important, that the regulatory authorities are still grappling with many issues around telemedicine. As we move forward, we are certain to see continued adjustments to the rules as they try to figure out where these rules will land long term.

On a broader policy level, the end of the PHE will bring the focus back to the long-running debate about telemedicine with the same questions, where and when is it safe/appropriate and does it make financial sense?

We took a break from or at least lessened the intensity of this debate to deal with the immediate COVID crisis, but I don’t believe the debate is over by any means. The good thing is that given the size of telehealth expansion in terms of access and, of course, the speed of technological advances, we will very likely have some different and better answers to those questions than we had before and even during the crisis.

Q. What should the healthcare industry be doing to ensure telemedicine stays as robustly practiced as it has been during the pandemic?

A. I don’t think telemedicine will be practiced as robustly as it was during the pandemic in the aggregate, at least not right away. In-person care is now fully available and we are going to have millions of people rolling off the Medicaid rolls in the next year, many of whom will not be able to maintain replacement insurance.

These two factors alone almost guarantee an aggregate reduction in telemedicine utilization as we roll out of the pandemic. Beyond that, the first question that needs to be answered or proven is, should telemedicine be practiced as robustly as it was during the pandemic? While I personally believe it should, I think it is a mistake to think all stakeholders are sold on that idea.

It’s critical to understand that, despite the general sense that the expanded use of telemedicine services was a very positive development during the pandemic, the pandemic was not a real-world laboratory for this expansion.

It was first implemented when it was essentially the only way to obtain non-emergency care and in an anomalistic (and very brief) time in our history when our government was much less concerned about cost. Now with in-person carefully available, we not only have to deal with “paying for” the healthcare dollars we spent during COVID but also the monies we can expect to spend as the population ages.

Scrutiny and skepticism of telemedicine may even increase with regard to cost. In my 30 years of practicing law, I often have seen market participants move forward on the premise that market demand will simply wipe away regulatory concerns. That usually doesn’t work out very well.

So, I think the telemedicine industry will need to continue to prove telemedicine’s case in order for telemedicine to thrive and reach pandemic levels again. Regulators and payers still have some questions about efficacy and cost.

My sense is some of the efficacy questions were answered affirmatively during the pandemic, but the cost was not really addressed. I have no doubt these concerns will be addressed and telemedicine will at some point reach and well surpass pandemic-era utilization. It’s just a matter of when.

The faster the industry proves telehealth’s efficacy and overall value, the faster this will occur. On the flipside, and this is where regulation can really help legitimate players in an industry, telemedicine providers who experience bad outcomes or do unscrupulous things with private healthcare data could potentially set the expansion of telemedicine back substantially.

Q. What should CIOs and other health IT leaders at hospitals and health systems be doing to address new telemedicine challenges?

A. Like so many challenges facing the hospital industry, it will take a multi-pronged approach. As any good hospital administrator knows, it starts with the patient. The patient and the provider need technology to communicate.

First, the CIO needs to understand the technology that is available and accessible to the hospital’s patients and find the technology solutions for those patients. As we know, many patients do not have ready access to broadband internet or computers. CIOs need to ask themselves, “What technology solutions will work best with my patient’s accessible technology?”

Second, understand and maximize the technologies that complement the delivery of care. The most likely telehealth encounters to be paid for are those in which care is delivered, a physician consults with a patient or prescribes a drug, etc.

However, one of the things that our episodic healthcare system has been in my opinion rightly criticized for is being a system that has historically ignored the fact that most care actually occurs outside of the “delivery” episode or encounter.

The CIO needs to know which ancillary technologies are best suited to support the care being delivered. For example, remote patient monitoring can be critical in making sure care delivered remotely (or in person) is doing what it’s supposed to do and that adverse outcomes do not occur.

The trick here is that reimbursement for this type of activity has been spotty and it may be a cost-saver more than a revenue-generator, making the selection of the most cost-effective technology critical. On the consumer front, it is critical that the patient’s entire experience be a positive one.

If the care is great, but it takes the patient 20 minutes to log on through an app or she experiences problems with billing or payment, they will simply not use the service and opportunities to maximize the use and efficiency of telemedicine will be lost.

Third, produce as much actionable data from an operational and policy perspective as possible. With operating margins non-existent or dangerously thin at many hospitals and health systems, CIOs will need to know as quickly as possible what works for their organization from both a patient and provider satisfaction as well as a cost standpoint, quickly phasing out solutions that don’t work and building upon those that do.

Externally, any kind of data that demonstrates efficacy and/or efficiency of telemedicine can be helpful in championing the expansion of telemedicine to government officials and payers, some of whom remain somewhat skeptical of telemedicine’s net benefits.

Finally, and this is obvious and not unique to telemedicine, but it is so critical that I would be remiss in not mentioning it. Data privacy and security is paramount. Telemedicine solutions have notoriously been seen as the weakest link in a data security structure, particularly considering that the maintenance of that link, such as a smartphone, may be entirely outside of the control of the hospital.

It is critical that regulatory schemes keep unscrupulous players out of the market, but unfortunately, once a massive data breach occurs, the motives or good faith of the breacher becomes virtually irrelevant. It probably goes without saying but at the same time it can’t be understated: Technology associated with telemedicine must minimize the risk of a data breach.

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