Making Inroads into Telehealth: How One “Sub-Sector” of Healthcare Continues to Evolve (Part 1)

June 13, 2018
In Part 1 of a two-part feature on the telehealth landscape, a partner at Alston & Bird discusses how providers are—and will continue to—fight through the many barriers that exist in the telehealth landscape.

Last September, the U.S. Senate unanimously passed the Creating High-Quality Results and Outcomes Necessary to Improve Chronic (CHRONIC) Care Act of 2017, bipartisan legislation that expands telehealth services for chronic care patients in Medicare. As Healthcare Informatics reported at the time, the legislation’s overarching goal is to transform how Medicare works for seniors who suffer from chronic illnesses by including provisions such as expanding access to telehealth services.

Indeed, currently, there are several restrictions regarding reimbursement for telehealth services under Medicare, such as patients may only be located at certain clinical sites or within certain rural areas, and only Medicare-defined physicians and practitioners can provide telehealth services. The bill, which received favorable response from health IT stakeholders, is just one example of various recent and forthcoming policies and regulations that will make telehealth more mainstream and “open up” reimbursement avenues for providers, says Sean Sullivan, an attorney in the healthcare practice group of Atlanta-based law firm Alston & Bird.

Sullivan notes that there are lots of different telehealth policies that fall into a few different buckets.  For one, there is a “licensure obstacle,” in that every state has their own licensure requirements. Generally, the servicing physician has to be licensed in the state where the patient is located. “So you can’t just have a telemedicine company that has 25 doctors sitting in a bunker somewhere in some city, calling patients and taking care of patients all over the U.S.,” he says. “Each patient might be in different states and each physician might only be licensed in one or a few states. And it gets really difficult when you try to have a large-scale telemedicine platform because you have to have coverage and licensures for all the states you are covering. It’s the main barrier right now,” he says.

Sean Sullivan

As far as breaking down those barriers, Sullivan points to the Interstate Medical Licensure Compact, an initiative which just recently officially began accepting applications from qualified physicians who wish to obtain multiple licenses from participating states. Currently, 18 states have adopted the Compact and eight additional states and the District of Columbia have introduced legislation in support of a pathway for license portability.

“That’s a huge relief,” Sullivan attests, speaking to the Compact. “It’s been fairly slow, though it is picking up momentum. But it is still not a one-sized-fits-all solution; doctors can’t sign up and get licensed in every state, but they can certainly apply to all the states where they think they will serve,” he says. And that brings up another key question, says Sullivan: Is there a different standard of care throughout different states and is it even necessary to have that state-by-state licensure?

Indeed, licensing providers across state lines has long been a challenge. Clinicians who want to treat patients in another state have historically had to apply for and pay for licenses in those states, a costly and time-consuming process. Some state boards have sought to prevent or limit the expansion of telehealth, citing patient safety concerns.

For Sullivan, state-by-state variances simply do not make a lot of sense. “A person with a cold, broken bone or any illness in Alabama is probably going to have the same issues and be treated the same way as if he or she was in Oregon. But the main obstacle is that these individual state medical boards want to and need to have a feeling of control. And it’s also a source of revenue in getting those individual licenses from each physician,” he explains.

What’s more, telehealth practitioners have also long been prevented from being able to treat patients until they have established an in-person patient-doctor relationship. But now, in almost every state, that relationship can be created via telemedicine, with Texas being one of the last holdouts for this particular issue.

Still, there continues to exist a confusing landscape of state laws and regulations. Sullivan notes that every state decides on how they the physician-patient relationship can be established, how telemedicine will be treated, whether or not consent is required, what might be required within that consent, what the limitations might be for providing prescriptions, and what the limitations might be for providing licensures.

Nonetheless, Sullivan believes that current and future regulations and policies will help remove some of these barriers, and that telehealth roadblocks will continue to dissipate each year. This will open up telehealth to service new areas—not just rural areas, he says. “Ultimately, all of us will be seeking to get healthcare and technology will simply be a part of it. Telehealth now is its own industry, but the end goal is that healthcare will include telehealth and the ‘tele’ part will go away. But more legislation ends to happen, as well as more regulation and guidance from CMS [the Centers for Medicare & Medicaid Services].”

Sullivan does believe in one key factor that will continue to push the sub-sector forward, however: hospital buy-in. To this end, he says most of his clients are hospitals that are either affiliated with physician groups or have them as subsidiaries. These hospitals are setting up telehealth programs where a big or medium-sized hospital will reach out to smaller hospital and provide telehealth specialist services through their physician groups, he explains. “They may have a subsidiary physician group that has specialists in neuroscience, orthopedics or some other specialty that smaller hospitals might not have available, so they will contract with the bigger hospitals who are putting together telemedicine platforms,” Sullivan explains. That enables the small organizations to keep the patients at those locations. “It can be a lifeline for them,” he adds.

And on the reimbursement front, Sullivan acknowledges that providers are quite frustrated as they want to make sure they are getting paid for the services they provide. But in Sullivan’s point of view, physicians are thinking about the reimbursement challenge in the wrong way. “I try to get them to think about reimbursement not as the top priority, but instead to think about telemedicine as improving quality and improving access to healthcare for people who can’t access it. Then, ultimately, if you get those things in place, the reimbursement will flow. If you are doing things right, healthcare in the U.S. will get better and you will get your reimbursement,” he says.

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