Telemedicine: Past, Pandemic and Future

Attorney Q&A with Melissa Revell

Prior to this year’s unprecedented pandemic, telemedicine was gaining traction, but not yet widely utilized for mainstream healthcare. However, the rapid spread of COVID-19 changed everything as regulators, commercial payers, medical providers and patients alike embraced telemedicine to avoid risky in-person exposure.

In this LINC Q&A video, McAfee & Taft healthcare lawyer Melissa Revell discusses how the pandemic dramatically shifted the use of telemedicine, how telemedicine is being used, what measures have been taken to expand telemedicine, and what lasting impact the pandemic may have on the future of telemedicine.


Q: What does telemedicine mean?

A: Generally speaking, telemedicine refers to the remote provision of healthcare services, using technology to exchange information to evaluate, diagnose, or treat patients. But each state defines telemedicine somewhat differently, and the way it’s defined will limit the scope and nature of telemedicine services that can be provided.

Additionally, many payers have their own requirements for telemedicine and federal law HIPAA will really place requirements on the type of communication or platform that can be used. So, in effect, there are multiple layers of requirements and regulations that all govern telemedicine. In response to the COVID-19 pandemic, these regulatory agencies and many commercial payers quickly broadened their definition of telemedicine in order to permit its expanded use.

Q: How widespread was the use of telemedicine before COVID-19?

A: Before the onset of the COVID-19 pandemic, telemedicine was really a niche model of healthcare delivery that was gaining traction in certain segments of the healthcare market, but was not necessarily widely utilized. After the COVID-19 pandemic, however, it is officially breaking into the mainstream.

Prior to COVID-19, CMS placed really strict requirements on the type of telemedicine that it would reimburse. For example, it limited telemedicine to a really narrow set of circumstances in which Medicare beneficiaries who lived in a designated rural area with limited access to care could utilize telemedicine, but they had to travel to a healthcare facility for that virtual appointment.

Telemedicine growth had been further limited by several hurdles, like really high startup costs, unfavorable reimbursement rates as opposed to an in-person visit, and just a general lack of demand.

Q: Why did the US rapidly expand telemedicine as a response to the novel coronavirus?

A: Many public health officials urged the public to avoid going to healthcare facilities to avoid the risk of exposure. Well, as the COVID-19 crisis developed, public health officials then became concerned that the public simply would not seek treatment at all if they couldn’t do so over the phone or via video chat.

Well, telemedicine is going to promote social distancing while allowing providers and patients to avoid the risk of exposure and potentially avoid overburdening the healthcare systems. It enables everyone, especially those with COVID-19 symptoms, to simply stay at home and they can virtually communicate with their providers to receive the care that they need.

Q: How is telemedicine being used during COVID-19 pandemic?

A: Patients and providers are utilizing telemedicine during COVID-19 in many different ways. Virtual visits over the phone or video chat can provide routine ongoing care for non-emergent situations, whereas an online questionnaire perhaps could facilitate COVID-19 screening and help determine whether or not that patient should seek in-person treatment. It’s important to note, though, that every payer has their own requirements for the particular method of communication that can be used and that they’ll pay for.

There’s so many different types of situations that telemedicine are being used during the COVID-19 pandemic. So, for instance, many providers are screening a patient that has mild respiratory symptoms to see if they have COVID-19. Or, they’re evaluating a completely non-symptomatic patient who’s been exposed to someone with coronavirus. Perhaps they’re evaluating a patient completely unrelated to COVID-19, but that patient doesn’t wanna go into a healthcare facility to avoid the risk of exposure. And it’s also allowed providers who have been quarantined due to COVID-19 to stay home and they can continue to treat patients from the safety of their own home while helping to reduce the spread of virus.

Q: What specific measures have been taken to expand telemedicine in the US?

A: This past March, the Secretary of HHS (U.S. Department of Health and Human Services) used the waiver authority granted by Section 1135 of the Social Security Act to expand the type of covered services for telemedicine. This expansion permitted Medicare beneficiaries in all areas of the country, whether rural or urban, and in all settings, including their own home, to use telemedicine, even if the care is completely unrelated to COVID-19.

Many payers like commercial payers quickly followed suit and they expanded the types of modalities that could be used and they also eliminated several restrictions related to telemedicine. HHS also announced in March that it is allowing healthcare providers who provide telehealth services in good faith to communicate with their patients through everyday communication technologies, many of which were historically prohibited under HIPAA.

This change allows providers to use really easily accessible applications like FaceTime, Facebook Messenger, video chat, Google Hangouts, or Skype for telemedicine, even if the care doesn’t relate to COVID-19. However, they cannot use public-facing communications like Facebook Live or TikTok, which are open to the public.

There have also been changes to telemedicine reimbursement. Many payers like Medicare have added what they call payment parity, which essentially means that a telemedicine visit is reimbursed at the same rate as an in-person visit.

Q: What do you think will be the lasting impact of telemedicine expansion after COVID-19?

A: It’s important to remember that the changes implemented by the executive orders are only temporary and they will expire by operation of law once the crisis has subsided. Any long-term changes are really gonna require more legislation or more extensive or permanent regulatory changes.

Whether wide use of telemedicine will continue after the pandemic really depends on whether there’s demand for telemedicine services. We haven’t yet been able to analyze data related to patient outcomes for those who received care over telemedicine or determine how many people actually chose that option, to have their care via telemedicine when the option was presented.

It will be really interesting, I think, to see whether patients who used telemedicine for the very first time during the pandemic were satisfied enough with the care that they received that they will continue to want their virtual visits.

Reimbursement for telemedicine will really be the main factor in determining whether or not it continues after the pandemic. CMS has not yet announced whether it’s going to continue any of these changes that it put into place during the pandemic. And most commercial payers typically follow the tone set by CMS, so it will really be important in navigating the future of telemedicine.

On August 3rd, President Trump signed an executive order seeking to make some of these changes to telemedicine more permanent. The change calls on he secretary of HHS to issue rules to this effect during the next 60 days, so we’ll see what happens.

The order does only apply to one segment of Medicare beneficiaries, though: those who reside in rural communities. But the administration has said that this is intended to be a signal to Congress, that the president is ready to support any legislation to make telehealth options more permanent to all Medicare beneficiaries.

This Attorney Q&A has been provided for information of clients and friends of McAfee & Taft A Professional Corporation. It does not provide legal advice, and it is not intended to create a lawyer-client relationship. Readers should not act upon the information in this Q&A without seeking professional counsel.

August 19, 2020

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