Pandemic

The Policy Future for Telehealth After the Pandemic

Jack Atterberry, MJLST Staffer

The Pandemic Accelerated Telehealth Utilization

Before the Covid-19 pandemic began, telehealth usage in the United States healthcare system was insignificant (rounding to 0%) as a percentage of total outpatient care visits.[1] In the two years after the beginning of the pandemic, telehealth usage soared to over 10% of outpatient visits and has been widely used across all payer categories including Medicare and Medicaid.[2] The social distancing realities during the pandemic years coupled with federal policy measures allowed for this radical transition toward telehealth care visits.

In response to the onset of Covid-19, the US federal government relaxed and modified many telehealth regulations which have expanded the permissible access of telehealth care services. After a public health emergency was declared in early 2020, the Center for Medicare & Medicaid Services (CMS) and the Department of Health and Human Services (HHS) modified preexisting telehealth-related regulations to expand the permissible use of those services.  Specifically, CMS temporarily expanded Medicare coverage to include telehealth services without the need for in-person visits, removed telehealth practice restrictions such as expanding the type of providers that could provide telehealth, and increased the reimbursement rates for telehealth services to bring them closer to in-person visit rates.[3] In addition, HHS implemented modifications such as greater HIPAA flexibility by easing requirements around using popular communication platforms such as Zoom, Skype, and FaceTime provided that they are used in good faith.[4]  Collectively, these changes helped lead to a significant rise in telehealth services and expanded access to care for many people that otherwise would not receive healthcare.  Unfortunately, many of these telehealth policy provisions are set to expire in 2024, leaving open the question of whether the benefits of telehealth care expansion will be here to stay after the public emergency measures end.[5]

Issues with Telehealth Care Delivery Between States

A big legal impediment to telehealth expansion in the US is the complex interplay of state and federal laws and regulations impacting telehealth care delivery. At the state level, key state differences in the following areas have historically held back the expansion of telehealth.  First, licensing and credentialing requirements for healthcare providers are most often licensed at the state level – this has created a barrier for providers who want to offer telehealth services across state lines. While many states have implemented temporary waivers or joined interstate medical licensure compacts to address this issue during the pandemic, many states have not done so and huge inconsistencies exist. Besides these issues, states also differ with regard to reimbursement policy as states differ significantly in how different payer types insure differently in different regions—this has led to confusion for providers about whether to deliver care in certain states for fear of not getting reimbursed adequately. Although the federal health emergency helped ease interstate telehealth restrictions since the pandemic started, these challenges will likely persist after the temporary telehealth measures are lifted at the end of 2024.

What the pandemic-era temporary easing of telehealth restrictions taught us is that interstate telehealth improves health outcomes, increases patient satisfaction, and decreases gaps in care delivery.  In particular, rural communities and other underserved areas with relatively fewer healthcare providers benefited greatly from the ability to receive care from an out of state provider.  For example, patients in states like Montana, North Dakota, and South Dakota benefit immensely from being able to talk with an out of state mental health provider because of the severe shortages of psychiatrists, psychologists, and other mental health practitioners in those states.[6]  In addition, a 2021 study by the Bipartisan Policy Center highlighted that patients in states which joined interstate licensure compacts experienced a noticeable improvement in care experience and healthcare workforces experienced a decreased burden on their chronically stressed providers.[7]  These positive outcomes resulting from eased interstate healthcare regulations should inform telehealth policy moving forward.

Policy Bottlenecks to Telehealth Care Access Expansion

The presence of telehealth in American healthcare is surprisingly uncertain as the US emerges from the pandemic years.  As the public health emergency measures which removed various legal and regulatory barriers to accessing telehealth expire next year, many Americans could be left without access to healthcare via telehealth services. To ensure that telehealth remains a part of American healthcare moving forward, federal and state policy makers will need to act to bring about long term certainty in the telehealth regulatory framework.  In particular, advocacy groups such as the American Telehealth Association recommend that policy makers focus on key policy changes such as removing licensing barriers to interstate telehealth care, modernizing reimbursement payment structures to align with value-based payment principles, and permanently adopting pandemic-era telehealth access for Medicare, Federally Qualified Health Centers, and Rural Health Clinics.[8]  In addition, another valuable federal regulatory policy change would be to continue allowing the prescription of controlled substances without an in-person visit.  This would entail modifying the Ryan Haight Act, which requires an in-person medical exam before prescribing controlled substances.[9]  Like any healthcare reform in the US, cementing these lasting telehealth policy changes as law will be a major uphill battle.  Nonetheless, expanding access to telehealth could be a bipartisan policy opportunity for lawmakers as it would bring about expanded access to care and help drive the transition toward value-based care leading to better health outcomes for patients.

Notes

[1] https://www.healthsystemtracker.org/brief/outpatient-telehealth-use-soared-early-in-the-covid-19-pandemic-but-has-since-receded/

[2] https://www.cms.gov/newsroom/press-releases/new-hhs-study-shows-63-fold-increase-medicare-telehealth-utilization-during-pandemic#:~:text=Taken%20as%20a%20whole%2C%20the,Island%2C%20New%20Hampshire%20and%20Connecticut.

[3] https://telehealth.hhs.gov/providers/policy-changes-during-the-covid-19-public-health-emergency

[4] Id.

[5] https://hbr.org/2023/01/its-time-to-cement-telehealths-place-in-u-s-health-care

[6] https://thinkbiggerdogood.org/enhancing-the-capacity-of-the-mental-health-and-addiction-workforce-a-framework/?_cldee=anVsaWFkaGFycmlzQGdtYWlsLmNvbQ%3d%3d&recipientid=contact-ddf72678e25aeb11988700155d3b3c69-e949ac3beff94a799393fb4e9bbe3757&utm_source=ClickDimensions&utm_medium=email&utm_campaign=Health%20%7C%20Mental%20Health%20Access%20%7C%2010.19.21&esid=e4588cef-7520-ec11-b6e6-002248246368

[7] https://bipartisanpolicy.org/download/?file=/wp-content/uploads/2021/11/BPC-Health-Licensure-Brief_WEB.pdf

[8] https://hbr.org/2023/01/its-time-to-cement-telehealths-place-in-u-s-health-care

[9] https://www.aafp.org/pubs/fpm/issues/2021/0500/p9.html


Pandemic Flu and You

by Eric Nielson, UMN Law Student, MJLST Staff

Thumbnail-Eric-Nielson.jpgWelcome to flu season. That wonderful time of year where we cross-contaminate millions of bioreactors in our schools and unleash the resulting concoction on humanity.

Flu kills thousands of Americans each year. The good news is that since H1N1 in 2009, we’ve gone without a serious flu pandemic threat. The bad news, according to researchers, is that may be just a matter of luck.

Researchers have recently published multiple methodologies for converting existing animal strains of flu into pandemic capable versions. Flu strains are tested on unimmunized ferrets which are believed to best represent the human disease response to flu (and are kind of cute in a weaselly way). In Korea, researchers created a highly contagious swine flu variant that produces 100% fatalities in brave test ferrets. While it is expected that humanity’s general immunity to flu would provide significant protective effect, it’s still a bit worrisome that a pandemic strain can be produced with equipment little better than a couple of cages and some animals.

Work on bird flu variants that had been mutated to produce contagious versions was also recently described by researchers in the Netherlands . The article states, “The introduction of receptor-binding site mutations Q222L/G224S and the mutations H103Y and T156A in HA, acquired during ferret passage, did not result in increased cross-reactivity with human antisera (table S6), indicating that humans do not have antibodies against the HA of the airborne-transmissible A/H5N1 virus that was selected in our experiments.” Or in plain English, this variation, made with minor mutagenic exposure and some ferrets was indeed a pandemic capable virus.

It is hard to know how bad a flu pandemic would be. The exemplary case of the Spanish Flu in 1918 had a death rate of 3-7% of the population. CDC estimates that a similar disease treated with modern medicine techniques would have a 1.2% death rate. That would mean approximately 3.77 million deaths in the United States. It should be recognized that the Spanish flu pandemic had two waves when the flu mutated and became much more deadly partway through. Anthrax (not a flu) was estimated to have a 75% or higher respiratory kill rate prior to the letter attacks on congress in 2001. The actual death rate from those attacks was 5 of 22 infected or 23%. While modern antivirals, antibiotics, hydration, and ventilators are effective, these resources would be limited in the event of a true pandemic. Especially considering the CDC estimates that 55 million Americans contracted H1N1.

There has not been significant legislation since James Hodge, Jr. stated in his article “Global Legal Triage in Response to the 2009 H1N1 Outbreak” published in 2010 in the Minnesota Journal of Law, Science & Technology that, “If H1N1 was a “test” run of the modern global public health system, then the system has fallen short.” While states have included pandemic preparedness into their planning,the overall level of preparedness is mixed.

The fact of American life is that our politics are reactive to crisis. Even shocks like the bird flu and swine flu have not been enough for our federal and local governments to develop plans to prepare for a pandemic. Instead, the lesson learned has been that there is nothing to worry about. Stay healthy.