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Telehealth Law & COVID-19: Changes To Look Out for in 2021

On Behalf of | Jun 1, 2021 | Articles, Blog, Healthcare Law, Publications

Telehealth and telemedicine have been on the rise over the past decade for those in the healthcare industry. As technology improves, more patients opt for remote medical care to alleviate the costs and inconveniences associated with in-person care.

Recently, this area of medical services has received a metaphorical shot in the arm because of the global coronavirus pandemic, leading to increased patient volume and legal complexity in this budding area of medicine.

This influx of change affects not only the care side of telehealth but also the legal rules and regulations that guide the trajectory of telemedicine as a whole. Our firm—which has built a niche in healthcare law—is closely monitoring how the pandemic has acted as a catalyst for change in this area of medical care.

In this blog, we will address some of the more recent changes on the legal side of telehealth on a state and federal level and speculate on future changes.

A Snapshot of Telemedicine in the U.S.

Over the past five years, the number of telehealth services has increased by almost 10% per year. Records show that between 2010-2017, there was a nearly 50% boost in hospitals that utilize telehealth services and communication.

As of now, over 75% of U.S. hospitals are using telehealth services to connect with patients and practitioners. Medicaid programs now have some form of coverage for these services. However, it has lagged behind other payers due to the limits on coverage and payment for telehealth services. These limitations have slowed how efficient telehealth technology has evolved. This, along with the challenge of many practitioners needing cross-state licenses, continues to be an overall disruption in progress. This has led to a significant push for the government to open up more and increase the use of telehealth.

Telemedicine in the Age of COVID

Since COVID hit, there has been a dramatic spike in telehealth usage. It’s proven that practitioners can diagnose and help patients while conserving medical supplies and reduce the strain on office and facility capacity.

As our current global pandemic continues, practitioners have pushed to maintain the expansion of telehealth services. Practitioners who have expected telehealth to decrease have cited that coverage concerns and patients wanting in-person visits now that a vaccine is being administered are the primary causes.

The Impact Of The Pandemic On Telehealth Regulations in 2020

At the beginning of the global pandemic, we saw a flurry of telehealth and telemedicine laws being passed to provide immediate relief for both patients and medical providers. One such bill, named the Telehealth Modernization Act, aimed to do the following:

  • Remove geographic and originating site restrictions from Medicare coverage of telehealth services;
  • Ensure that Medicare covers telehealth services at federally qualified health centers (FQHCs) and rural health clinics (RHCs);
  • Give the Health and Human Services Secretary the authority to permanently expand the types of telehealth services covered by Medicare (the list now stands at 135) and the types of care providers who able to deliver those services; and
  • Enable Medicare to cover more telehealth services used for hospice and home dialysis care.

The bill was supposed to be a three-pronged approach to improve the healthcare landscape. This bill joined a flurry of other bills in 2020 that all aimed to make telehealth services more affordable and accessible to millions who may need them.

Predictions For The Future Of Telehealth Legislation

As the healthcare landscape continues to shift around the pandemic and improving technology, we can expect to see more legislation addressing telemedicine and telehealth.

Given how there was a significant expansion of Medicare and Medicaid coverage in the realm of telemedicine and telehealth, it may be helpful to try to chart the trajectory of the field for 2021 and beyond.

Judging by legislation proposed in 2020 and earlier this year, we can make a few educated predictions about how this area of medicine will continue to evolve.

Reducing Barriers To Care

At the onset of the coronavirus pandemic, legislators looked to reduce the barriers to care for practitioners and patients. States offered temporary waivers to suspend medical licensing requirements, which allowed practitioners to deliver services across state lines. We could see some states attempt to make these permanent to keep the barriers to care low.

In 2020, we already saw bills advance like the Telehealth Expansion Act of 2020, the Advancing Telehealth Beyond COVID-19 Act, and the Protecting Access to Post-COVID-19 Telehealth Act that attempt to make key changes permanent.

As with most things, reducing barriers has led to some pushback from traditional practitioners who may be invested in conventional licensing requirements. Legislators in many states are currently weighing the pros and cons of loosening the barriers, with many leaning towards loosening them in the face of a drastically-altered healthcare landscape. We can expect to see an increase in lobbying efforts from both sides of this issue in the coming years.

A Focus On Privacy

The issue of privacy is one that Congress has been grappling with since the technology boom of the 90s. The world of telehealth is no exception to this, with some companies coming under fire over the years for mishandling patient information. We could expect to see substantial changes to HIPAA laws and state consumer privacy laws to reflect the changing healthcare climate. On both the state and federal levels, we can expect the introduction of robust privacy laws and enhanced enforcement by the FCC.

Technology-Neutral State Laws

At the onset of the coronavirus pandemic, many prior laws surrounding allowable modalities, practice standards, and other aspects of telehealth were relaxed to aid patients and medical professionals. One consequence of these temporary changes was that telehealth was allowed to focus more on quality of care than modalities of care delivery. Given the generally positive reaction to these changes, we may see legislation that continues towards technology-neutral telehealth laws.

Stay Up-To-Date With Weiss Zarett!

As a firm with decades of experience in healthcare law, we make it a point to keep up with the rapid pace of changes in telehealth and telemedicine. Our attorneys keep a close eye on developments on a state and federal level so we can best guide our clients.

To learn more about our services or how your practice may be affected by this changing landscape, contact us today to speak with an attorney!