Dr Kimberly Rockwell and Alexis Gilroy Discuss the Promise of Telemedicine for COVID-19 and Beyond

April 6, 2020

Kimberly Lovett Rockwell, MD, JD, and Alexis S. Gilroy, JD, the authors of a commentary in the April issue of The American Journal of Managed Care®, explain how telemedicine can help alleviate the burden on health systems brought by the coronavirus disease 2019 (COVID-19) pandemic and how regulations are shifting to enable use of the technology during the pandemic and beyond.

Kimberly Lovett Rockwell, MD, JD, and Alexis S. Gilroy, JD, the authors of a commentary in the April issue of The American Journal of Managed Care® (AJMC®), explain how telemedicine can help alleviate the burden on health systems brought by the coronavirus disease 2019 (COVID-19) pandemic and how regulations are shifting to enable use of the technology during the pandemic and beyond.


AJMC®: Welcome to the MJH Life Sciences News Network, and thank you for joining us. Can you introduce yourself and tell us a bit about your work?

Alexis Gilroy: Sure. I’m Alexis Gilroy and we’re healthcare attorneys with the global law firm of Jones Day, doing a variety of healthcare, transactional, regulatory, compliance, and litigation work for a variety of stakeholders—in particular, digital health companies, healthcare providers who are delivering healthcare services using telehealth. So, Kimberly?

Kimberly Rockwell: I’m Kimberly Rockwell. I do the same thing as Alexis does. I’m an attorney with Jones Day. I am also a primary care physician, and I have lots of experience using telemedicine in my practice as a primary care physician previously.

AJMC®: Great. What inspired you to write this commentary about telemedicine and COVID-19?

Rockwell: Well, you know, we've been serving clients in telemedicine space for a long time, Alexis for almost 20 years now and myself for nearly a decade, either practicing telemedicine or advising telemedicine clients, and when the COVID-19 pandemic began to take hold, we recognize the vital role that telemedicine could play in offloading healthcare systems and preventing infectious exposures. We also knew that a lot of that telemedicine was widely underutilized because of onerous regulatory and legal barriers. And so we thought of this as sort of a call to arms for healthcare providers who hadn’t yet adopted telemedicine systems.

AJMC®: How can telemedicine be used to keep healthcare providers and patients safe during disease outbreaks?

Rockwell: Well, in terms of preventing infectious exposures, there’s a lot of layering and ways that it can help. For example, lots of patients can be seen remotely. That includes low-acuity patients with chronic ongoing healthcare needs, people with chronic diseases such as diabetes, heart failure—all of their follow-up visits can be done remotely and prevent them from being exposed in healthcare systems to infectious agents. And then patients with low-acuity respiratory symptoms that are concerned about potentially having COVID-19 can be dealt with remotely as well and prevent them from exposing healthcare workers and prevent them from additional exposures if they don’t have COVID-19.

The other way that we’ve seen that it’s been used is that a lot of [intensive care unit] specialists have been called to do telemedicine and take care of critically ill patients remotely and that is helping to reduce exposures among healthcare staff, and also increasing the workforce. And then the last way is it can be used for something called forward triage. And with forward triage, you can prescreen patients with respiratory symptoms and even high-acuity patients. The remote telemedicine systems can be used to alert the hospital for high-risk patients, so instead of allowing those patients to sit in the waiting room to be seen, and exposing everyone else in the waiting room in an emergency department or urgent care, those patients can be prescreened and then dealt with immediately, put into isolation as soon as they arrive at the hospital.

Gilroy: And I’ll also add from an operational perspective that telemedicine is a really key way, it has been for a while but we think this will be something with COVID and beyond, that hospital providers, health systems will think of utilizing for collaborating care settings, whether that’s with a specialist in one care setting, being able to support a specialist or another primary care other nonphysician provider, even another care setting, or direct to a patient in their home, which is so important right now. But, as you look at different ways that you can operationalize these different technologies and these methodologies, they really can meet healthcare organizational needs, whether that’s really just convenience and satisfaction goals with their patients or ongoing monitoring of patients and things like that, as we really rethink how we reorganize our care delivery. I think it’s also something that we’re already finding, currently active within COVID as you look at resource management, right? Whether that’s, you know, who can deliver what when, can we link to healthcare provider resources in another state, bring them to the hotspots, things like that. You can achieve that through telehealth. There’s a lot of legal regulatory hurdles that we’ll talk about later. But it is something that the technology can enable effectively, redeploying and navigating, pulling together those healthcare provider resources and deploying them where, when, and with whom that best meets the particular use case.

AJMC®: You write your commentary that “historically healthcare providers wishing to deliver clinical services through telemedicine faced myriad legal and regulatory challenges.” What were some of the challenges and how they changed in the past months and years?

Gilroy: Well, I wish we had about 3 days, but we don’t, so I'll try to give you kind of a way of looking at this from a high level. I guess first and foremost, from the federal side, which is really about, you know, payment primarily, right. And keep in mind, sometimes folks aren’t really familiar with this, the federal government doesn’t really regulate or oversee professional certification or the professional standards—that’s all at the state level. Historically that’s worked because you’ve done that within your geographic area within the state, because healthcare services have been delivered within a localized, primarily, nature. But now when you when you sort of pull back and as telehealth has evolved, and as technology capabilities enable healthcare providers to deliver services really without regard to geographic limitations, you now you need the federal government to really think hard about how they reimburse services. And there have been longstanding limitations to Medicare reimbursement, in particular for telehealth services.

You also need states to rethink how they deal with multistate issues. And Kimberly will give a little bit more of a sense on that. But I think it’s everything from licensing to are they comfortable with delivering care in this type of modality. Even though it’s still the same kind of care, it’s a unique method for billing care. Sometimes patients need to get used to it; sometimes providers, they need get used to it. Sometimes regulators, and this is what we have seen, they needed to get comfortable with the ability to deliver care in this manner. And so you really have a hodgepodge of different state rules that deviate. Some states require healthcare providers to use real-time video and audio, sort of like how we’re interacting right now; other states are more comfortable leaving it to the discretion of the healthcare provider, which, frankly, is the legal standard in most instances for how we judge healthcare providers. They need to meet a standard of care for delivering that particular type of service. And in certain instances states, sometimes for good reason, have decided they just want to see this evolution occur with telehealth to be comfortable that we’re okay with things like asynchronous methods of engaging between a provider and a patient to establish a doctor patient relationship, and other methods that we will see going forward with using things like chatbots, and artificial intelligence, and things like that, to augment the kind of care that healthcare provider can deliver.

AJMC®: Let’s talk about legislative and regulatory changes in telemedicine. What are the most important things CMS has done both before and after your paper appeared?

Gilroy: Well, we’ve been quite busy, just staying on top of the latest and really, it’s very important and I think we should applaud our regulators and policy actors in the last couple of weeks. I think they saw that telehealth could be one of a number of factors and tools that could be used in particular with COVID. And Medicare in particular, Department of Health and Human services, other officials at the White House, and others on early on, really leaned into telehealth, they wanted to understand it. We at Jones Day had the privilege of being able to work collaboratively with them early on to just frankly educate them. While it’s a useful tool and everyone saw its wonderful capabilities, as Kimberly mentioned earlier, in the face of COVID, it was, I think, an eye-opening experience for many regulators to realize the various layers of regulation and hurdles that, frankly, really evolved over the years. Some intended, some unintended, I think. And so, CMS on the federal side, has over the last couple of weeks in a couple of rulemaking processes and then guidance documents really removed many of the longstanding hurdles for payment for telehealth services, effectively putting payment on par with receiving that same kind of service in person. I think they’re continuing to look at what services they’re comfortable covering via telemedicine versus other mechanisms. And the way they view telemedicine, it is this real-time video and audio encounter like we’re having here today. They have for the first time covered other types of audio-only services, which is huge for CMS, and also been very thoughtful about things like remote monitoring and things like that. I hope, and we'll see how this goes, but I think these are some of the areas that we are likely to see stay in place, post COVID. But that is all happened, you know, in the last couple of weeks.

We’ve also seen agencies like FCC, the Federal Communications Commission, adopt a process for bringing around $200 million to the table for nonprofits and other public health organizations—the details just came out last night—to purchase and acquire telehealth technologies, which is a very needed resource right now, when many healthcare providers are financially strapped in the midst of trying to deploy and deliver care, yet they need to acquire some of these technologies that will enable them to deliver care in a telehealth manner.

Rockwell: And, in addition to that, states—which, as Alexis explained, really regulate the ins and outs of how care can be delivered to patients within the states—have adopted emergency waivers of things like physician licensure, nonphysician provider licensure for nurse practitioners, physician assistants, respiratory therapists, all kinds of nonphysician providers also have licensure waivers. A lot of states have waived certain requirements for, for example, the audiovisual technology piece. They’re allowing things like audio only, or asynchronous store and forward type technologies. And they’ve relaxed certain prescribing limitations, for example, that they’ve historically had, so a lot of states will adopt certain regulations that restrict the types of medications that can be prescribed over telemedicine, and they’ve relaxed a lot of that. So we’ve seen the states also actively engaging in relaxing a lot of requirements or restrictions or barriers that previously existed in order to better deliver care within the states and that includes licensed providers from across the country being able to deliver telemedicine to patients within the states. So a lot of times you know, students that go to school in one state but live in another and now have been forced to go home have been sort of disconnected from their primary care doctors, and what states have done is they’ve opened up the landscape so that the primary care physician located in another state doesn’t need to seek licensure in order to take ongoing care of the providers’ patients in another state.

Gilroy: If I can add one more thought, because I think this is very important and something we hope we’ll continue to see as an ongoing trend after this, the Department of Health and Human Services, CMS, and the White House last week hosted an open forum with telemedicine stakeholders from the industry, frankly to not only explain in real time some of the things that they were doing, and be reactive to questions they were getting about sometimes often nuanced regulatory changes, but to also listen, right? I mean, it’s very important to understand how delivering care via telehealth is different sometimes; how these organizations operate differently than traditional bricks-and-mortar healthcare providers. And so really, it was just such a great thing to see the regulators just directly engaging, seeking that understanding, learning from it, and then a couple of days later acting on it. So I think that’s something, if anything else out of this, perhaps a silver lining to continue to see that kind of interactive involvement between the regulators and those on the front lines. It’s really terrific.

AJMC®: What about global changes?

Gilroy: I think we're seeing a lot of those. This is something we’ve continued to see over the last couple of years, right, various different countries thinking about telehealth as well, what does it mean, how do they define it, and et cetera. But we’ve also seen Italy, Spain, China, Japan also recognize the importance of utilizing telehealth, whether that’s setting up remote triage units, remote hospital locations, things like that, so they’re understanding the technology and then adapting their regulatory infrastructure to allow for it. So I think that is something that will continue.

Prior to COVID, we were starting to see interest and some capabilities in actual cross-border activities between healthcare providers in one country to another country. That’s still relatively rare. Although, you know, in certain instances it is possible, but it’s very important to pay particular attention to both the health regulatory and the privacy regimes, which can still be quite different between 2 different countries. But within countries, I think, certainly telehealth is been viewed as a tremendous tool to enabling healthcare providers to reach their patients and to operationalize in a really thoughtful way to deliver care.

AJMC®: Do you think we will see doctors and patients continue to use telehealth at the same rates they are now, even after COVID-19 is over?

Gilroy: I think we’re there! Whether it’s the fact that regulations and reimbursement are likely to really change. We won’t stay course on all the bases as we are today; for example, I doubt we’ll retain some of the licensure waivers and some of the state actions that have occurred to date. But if we stay course on the reimbursement front, and what I continue to hear, I’ve heard story after story of healthcare provider who, they’re like, “wow, I never thought I could do this. This is great. I’m enjoying engaging with my patients this way; I can meet their needs this way. It’s convenient for me. I’m learning new ways that I can assess their care. I can collaborate with my colleagues in different ways, perhaps sometimes more efficiently and effectively.” So, I think it’s here. I think it has certainly taken a turn to expand care and to be a central foundational part for how health system and healthcare is delivered. But I think there’ll be a lot of ways we can learn from this: What delivery models really worked well? What should we should keep in the in-person setting, but maybe we augment it with telehealth services? So I think that’ll be really great, and I know some of the organizations doing this are already starting to talk about developing those use cases and developing that learning that will be so helpful after the fact. Kimberly is a clinician, I’m sure you have some good thoughts on this.

Rockwell: Yeah, I think that one of the things that’s been lacking historically is high-powered clinical research to really show that telemedicine can lead to good outcomes and can replace in-person care. And since with the rapid proliferation of the telemedicine systems and the rapid adoption with the COVID pandemic, this is allowing healthcare systems to collect a lot of data about how useful these systems are. And so, if telemedicine really proves itself with the COVID pandemic, then I think we can certainly see even some of these state relaxations that we expect to be temporary, at least currently, we may start to see states become much more comfortable with telemedicine as a practice modality, as the use cases really start to prove themselves out during the pandemic. So, we expect that providers will definitely be interested in continuing their use of telemedicine. It has the potential to reduce costs, it has the potential to increase access and convenience for patients, and it has the potential to continue high-quality care for a number of patients. So I think we do expect to see the use continue so long as the regulations also follow in not creating new or historic barriers, and that is likely to happen is the use cases prove out.

AJMC®: Great. What other steps would do the most to bring telemedicine into broader use?

Gilroy: Sure, I think reimbursement is key, I think you’ve heard that as an ongoing theme here. And so that’ll be really important. I think it's going to be important to think about how we integrate other digital health tools—peripheral devices that a patient could plug in to their computer or phone or things like that, that certain patients, chronic patients might need to have at home, so that you can further extend that care delivery model to a home setting. So I think that'll be important.

I think also as we think about how we thoughtfully engage and utilize artificial intelligence tools and chatbots and things like that, but thoughtfully within our regulatory rubric. It’s a very important and a challenging question for lawyers and regulators to consider, for example, you know, who is making a certain decision, right? Is it that artificial intelligence tool? Is it the healthcare provider? And so, navigating that question, also navigating what will become as liabilities arising from when mistakes occur, as they will, and being very thoughtful about how we get ahead of that.

I think another important issue that we need to be thoughtful about here in a practical way is privacy. We have to acknowledge that we’re doing things differently, healthcare providers are in a different kind of setting often when they’re delivering care via telemedicine, or at least they could be, and patients are as well. And so, how can we adapt our traditional delivery methods and thought processes with maintaining and being thoughtful about patients’ privacy on very sensitive topics.

So I think that’s all fair game. Those are important questions, questions that we are going to have to ask as consumers, as patients, as healthcare providers, as an industry, and we need to ask, but I think it’s exciting to see that at least some of the unfortunate barriers of the past where folks just didn’t have familiarity with telehealth or they didn’t know what it was, and there’s a comfort level that comes from just experiencing it, whether that’s as a provider or as a patient, so I think having many patients and providers who will have experienced using this new tool through this crisis, that really should go a long way, beyond everything else, to just getting their mind going on how they can deliver care and meet patient needs.

Rockwell: Yes, I just want to echo that. I think a lot of a lot of professionals have thought for a long time that these systems could be so useful to help patients. I had been using telemedicine in my primary care practice more than 10 years ago now. And so it’s been around for a long time, but comfort has been very slow to come, both for clinicians, who are understandably very worried that the quality of care may not be the same delivering care remotely, and for patients, who understandably really like to have physician contact and have that face-to-face contact with their provider. So, as patients and clinicians start to experience how telemedicine can be a very good tool, very useful tool in specific circumstances, certainly not in all circumstances, but in some, it is likely that the comfort level will increase and adoption will increase.

AJMC®: Great. Well, I'd like to remind our viewers that the full commentary can be found at ajmc.com/link/4549. And thank you both so much for your time and stay healthy out there.