Telemedicine Gains Traction in the Age of COVID-19

A recent survey conducted by Merritt Hawkins, a physician recruitment firm, found that nearly half of doctors are using telemedicine to treat patients as the COVID-19 pandemic changes how they deliver healthcare. That is up from just 18 percent when a similar survey was conducted in 2018.

It’s not just physicians who are turning to treating patients remotely. Patients too are embracing telemedicine as an option to in-person visits. According to a survey of 2,000 adults by Sykes Enterprises, nearly three-quarters said they would consider using telemedicine for treatment if they felt they had symptoms of COVID-19 and two-thirds said the pandemic increased their willingness to try it.

While the use of telemedicine had slowly been gaining acceptance among both physicians and patients, COVID-19 has expanded its use quickly. Policymakers, insurers and health systems also are making it more accessible by reducing barriers to use.

As we wrote about in March, the Office of Inspector General announced that physicians and practitioners would not be subject to administrative sanctions for reducing or waiving any cost-sharing obligations that federal healthcare beneficiaries may owe for telemedicine services.

CMS too has announced the roll-back of a number of regulatory barriers (albeit temporary) including the ability of doctors and other healthcare providers to deliver a wider range of care to beneficiaries in their homes, as well as changes in reimbursement for telemedicine services.

Many states have relaxed restrictions on provider licensing and prescribing online in their Medicaid programs, while the federal government has loosened restrictions by allowing Medicare beneficiaries to access telemedicine from any geographic location and not just rural areas.

The Office of Civil rights announced in March and April a series of HIPAA flexibilities. Among them, the ability of providers to use audio or video communication technology, regardless of safeguards without having to worry if they might face a penalty for HIPAA noncompliance. In addition, OCR announced it would not impose penalties against healthcare providers for a lack of a Business Associate Agreement with these communication vendors.

While caring for patients virtually has been critical during a time of crisis, this temporary move to telemedicine has likely paved the way toward further expansion. In March, a group of bipartisan lawmakers introduced companion versions of the Reducing Unnecessary Senior Hospitalizations (RUSH) Act of 2020, legislation to facilitate greater use of telehealth in skilled nursing facilities.  

While the COVID-19 epidemic has allowed the healthcare industry the ability to further dip its toe into the telemedicine arena, significant changes to existing laws and regulations will be required before we are able to fully embrace it.

Changes to reimbursement by state and federal healthcare payors (Medicare, Medicaid, TriCare), as well as private insurers; changes to existing HIPAA regulations, changes to the Controlled Substances Act to allow providers to prescribe controlled substances without a prior in-person relationship; changes to existing practitioner licensing laws; increased access to telemedicine by both providers and patients through the investment of infrastructure are just some of the things that need to be addressed.

While much good can come from expanding the use of telemedicine, we also know that it can come with an increase in fraudulent behavior, as we wrote about last year.

Last month, the Department of Justice charged the operator of a California-based durable medical equipment company in connection with a scheme that included telemedicine fraud and kickbacks resulting in more than $410 million in fraudulent claims to Medicare. He was the 22^nd defendant charged in what has been described as the largest healthcare fraud scheme in the history of the Southern District of Georgia. Previous charges in a string of cases include eight physicians, two nurse practitioners, two operators of telemedicine companies, and two brokers of patient data.