Telehealth Series #3: A Totally Unbiased and Impartial Assessment of Barriers to Telehealth Adoption in the United States

You might guess that the advent of telehealth aligns with the birth of Xennials (those born between 1977 – 1983, as we introduced in our previous article) and with the invention of the World Wide Web. But, much like the internet, telehealth has a long(er) history and has evolved over time. Indeed, authorities date telehealth back to 1948 when radiological images were first sent via telephone. While you might be tempted to say, “We’ve come a long way, baby,” the adoption of telehealth has, in the age of the Xennials, been slowed by regulations that impede rather than incentivize innovation.

Now, it is impossible to write about telehealth in 2020 without referencing the COVID-19 pandemic. It’s said that necessity is the mother of invention… or at the very least, in this instance, of forcing the acceptance and greater distribution of an existing invention. The need to maintain social distancing while also ensuring access to care has resulted in a dramatic upsurge in the use of telehealth. This has been made possible, in no small part, by the federal government’s relaxation of regulatory barriers pursuant to a Public Health Emergency (PHE). However, these changes are only temporary and will require Congressional action to make them permanent. We, therefore, present this article to advise patients, providers, payers, and other stakeholders on the barriers to telehealth adoption and to inform a contextual understanding of the issues that can be leveraged to advocate for change with the respective federal and state authorities.

We will evaluate the primary regulatory barriers to telehealth adoption, including:

1. Lagging Regulations,
2. Lack of Standardization, and;
3. Lack of reimbursement and coverage parity.

These issues are deeply rooted in historical constructs of the American healthcare system. As with many problems inside and outside of the healthcare system, our country often clings to the status quo and points to tradition as an excuse for resisting change. While these issues are not unique to the practice of telehealth, their intersection with telehealth provides a compelling case study of the impact that fragmented and conflicting regulations can have on the widespread adoption of innovation. We will, therefore, examine each one through a lens that considers how they have impacted the adoption of telehealth and will identify any progress towards their resolution, should such progress exist.

Barriers to Adoption of Telehealth

Until recently, telehealth use has been relatively limited, stifled by inconsistent federal and state regulations on the reimbursement of providers and licensure. These barriers, particularly those laws that present a patchwork of accepted and non-eligible costs and services, have hindered the launch of telehealth’s full capabilities. As outlined by various analysts including a recent report by the Brookings Institute and the John Locke Foundation, these regulatory barriers can be summarized as follows:

1. Lagging Regulations
   This is not a problem unique to telehealth and telemedicine. Across the board, technological advances are outpacing and outgrowing existing regulatory frameworks. When it comes to telehealth, however, there is a further complication: scope of practice.With the exception of Centers for Medicare & Medicaid Services (CMS) regulations (primarily relating to Medicare), how health care is delivered, and, more specifically, who can deliver what services, is governed by state statutes and regulations. This leads to barriers and inconsistencies when practicing across state lines. The policy landscape for providing telehealth services includes licensure and practice standards and there are 50 sets of often conflicting requirements regarding professional licensure. Furthermore, providers are required to hold a license from the state within which they are practicing (in the case of telehealth, this is where the patient resides). State licensure laws were first enacted in the 1800s with the intention of limiting competition and protecting geographic markets. Today these outdated policies limit access to care and act as a barrier to one of the most significant benefits of telehealth—connecting patients and providers at a distance.The Interstate Medical Licensure Compact was implemented in 2017 to streamline the licensing process for physicians practicing in multiple states by allowing qualified physicians to complete just one application and separate licenses from each state in which they intend to practice. With 29 participating states in the Compact, this reduces the administrative burden for physicians but does not resolve the barrier to the practice of telehealth. Further compounding the impact that variation in scope of practice has in complicating the implementation of telehealth and telemedicine is the fact that this is a highly contested issue, particularly in states that continue to require nurses (including advanced practice nurses) to operate under the supervision or collaboration of physicians when providing medical care. This tends to lead to further legislative inertia as it relates to clarifying ambiguity where there are overlapping scopes of practice. Where any tweak to statutory language is perceived as a high stakes political wrangle, much-needed amendments, updates, and clarifications are too often kicked (further) down the road. Progress in supporting the regulatory framework for telehealth delivery, like many care delivery innovations, becomes collateral damage.
2. Lack of Standardization
   As we spoke to in our previous article on telehealth terminology, there is a lack of consensus around the definitions for telehealth and telemedicine. This variability is not just definitional: it represents how telehealth regulation and policies have been developed and implemented in a piecemeal fashion over time and the degree of confusion that persists as a result. To illustrate the exponential impact that comes with having 50-odd regulatory frameworks as opposed to a single federal framework, consider the fact that each state sets its own policy for what constitutes telehealth service delivery (specifically determining what services can be delivered remotely, by whom, and under what circumstances) and what is eligible for reimbursement using State dollars. To illustrate the limitations this imposes, consider a start-up company developing groundbreaking technology and, rather than being able to quickly get it to market, they must spend countless months, and maybe even years, assessing state telehealth policy and adapting its product to each state (and frequently for each disease or professional intervention in each state). This creates an administrative burden on providers and telehealth services operating across state lines but also presents headaches to providers who operate within the state. This is because there is often great variability as to application within a state, with various scopes of practice (physicians, nurses, licensed social workers, psychologists) having their own professional standards. Providers are left sorting through myriad regulations to understand what they can and cannot do to implement telehealth in their practice. Until recently (namely with the passage of the CARES Act and CMS policy changes), many providers reasonably felt that the benefits did not outweigh the burden. Now, we are not picking a fight about state autonomy. We recognize (and laud!) that States, individually, are often better able to identify and legislate to address the specific needs of their communities. In our federalist system, states can serve as a laboratory for innovation. This is evidenced in no small part by the innovation that has come out of the Medicaid program. However, we must nonetheless highlight the impact that the lack of standardization is having on the adoption of telehealth. While simultaneously testing 50 different approaches to telehealth coverage may someday help us identify the best path forward, it is currently delaying the diffusion of these critical services.
3. Lack of Parity
   When thinking about healthcare, parity can take on a lot of meanings. In the world of telehealth, those meanings are currently boiled down to two primary focus areas: payment and coverage.Payment Parity is, generally, the idea that like or comparable services should be reimbursed or paid for at like or comparable amounts. We saw the concept of payment parity regarding mental health and substance use disorder services come to attention with the Paul Wellstone and Pete Domenici Mental Health Parity and Addition Equity Act of 2008 (MHPAEA). The essential purpose of the federal MHPAEA was to prevent insurance providers (and health plans in general) from imposing benefit limitations to either providers or patients for mental health and substance use disorder services that were less favorable than benefits for medical/surgical services. We use the MHPAEA as an example as there currently does not exist an equitable piece of legislation at the federal level that generally encompasses payment parity for telehealth services when compared to in-person services. The federal focus on telehealth policy has been within the Medicare program, leaving guidance for insurance carriers offering Medicaid, commercial, and all other types of products up to each individual state. Coverage Parity is the idea that there is some equal-ness in determining what services are and are not reimbursed if provided via telehealth modalities. And it all comes full circle in a vicious cycle, as deciding whether or not to reimburse for a telehealth service circles back to a payment parity issue. Based on (mostly) common sense, we can all agree that some services cannot be offered remotely. Some things require a patient and provider to be in the same physical location and should, therefore, not be able to be reimbursed if done so via telehealth. For those services that can be done remotely, the question becomes: Should they be done remotely? To that, we offer the example of prior authorizations. Insurance carriers leverage prior authorizations for the delivery of in-person services that are: (i) costly; (ii) high risk in delivery with potentially low yield in the outcome; and/or (iii) overused by provider networks. Regardless, the debate here is not what should and should not be covered. The debate, much like with Payment Parity, is what to do about a lack of federal-level guidance, which necessitates that a vendor, provider, or patient must understand the unique regulations of 50 different states.

Now, by this point, the savvy reader may have picked up on the fact that, despite the title of this article, we, at Atrómitos, are (generally) in favor of payment and coverage parity, assuming appropriate guardrails. However, we also recognize there are counterarguments. If you’re looking for an alternative point of view, you can check out this July 2020 Forbes article.

Regardless of what you think about telehealth parity, there is a pretty simple argument to make. A lack of federal-level policy makes it forever challenging for providers and vendors to be successful should they offer tele-based services across insurance products and/or within multiple markets (refer to our Lagging regulations section above if you want to revisit licensure headaches). Varying state-based regulations require different business and/or care delivery models to remain compliant with regulations while achieving some level of financial viability.

Looking Ahead

The United States has some room to grow when it comes to fully supporting the adoption and deployment of telehealth services. The necessity of rethinking care delivery in the face of the COVID-19 pandemic, in congruency with Congressional and federal agency action, has provided an opportunity to demonstrate the feasibility, efficiency, and patient satisfaction that can be associated with expanded telehealth care delivery.

In a span of six months, we have learned just how quickly access to care can be expanded when tele-based modalities are covered and reimbursed. State-level flexibilities have allowed providers to take the wheel on driving innovation in adopting telehealth offerings to care for those impacted by COVID-19 while attempting to maintain care for the general population, all with a line of sight on maintaining a transition to value-based care. There will be lessons learned from state-level implementation for years. Federally, the passage of the CARES Act and emergency policy changes from CMS have made it increasingly evident to providers that telehealth is not only a means of better tailoring care to patients but also a feasible and practical option for providers. While both the state-level flexibilities and federal allowances are only temporary, it is our hope that this experience will further inform policy-makers and fuel the push to address regulatory barriers in a systematic fashion going forward.