Exploring key telehealth policy considerations for 2025

Transcript - Exploring key telehealth policy considerations for 2025

Darryl Roberts: Both the Republicans and the Democrats, the House, the Senate and the Executive are all in favor of telehealth. All of them see it through a slightly different lens, and in ambiguity comes indecision.

Anuja Vaidya: Hello and welcome to Healthcare Strategies. I'm Anuja Vaidya, senior editor and special events lead at Xtelligent Healthcare and lead writer on Virtual Healthcare.

As 2024 draws to a close, pandemic-era telehealth flexibilities continue to hang in the balance. Without congressional action, these flexibilities, which have significantly expanded access to telehealth, will expire at the end of the year, potentially cutting off a critical healthcare lifeline for people nationwide. Today, Darryl Roberts, vice president of health informatics at RELI Group, is with us to discuss possible reasons why Congress appears to be moving slowly regarding extending these flexibilities or making them permanent despite bipartisan support and the most important pieces of telehealth legislation to watch in 2025.

Darryl, thank you for speaking with Healthcare Strategies today.

Roberts: Thank you. I'm glad to be here.

Vaidya: So, to open the conversation, I wanted to talk a little bit broadly about virtual healthcare first. So, could we first delve into some of the advantages of telehealth versus traditional healthcare and also how do they, sort of, work together, especially in some of these hybrid models that we're seeing become more popular? How do they work together to really provide the patient support and care that is needed?

Roberts: Let me start with a little bit of background. I actually started my nursing career -- I'm a registered nurse -- I started my nursing career as a home care nurse doing hospice home care in Baltimore City. And one of the important things about home care, which really I believe translates into the important things about telehealth, is you're invited into the person's home. You, as a clinician, get the privilege of walking into this individual's house, seeing how he or she lives, and really participating with that individual in their life, in their home.

And telehealth extends that somewhat. It allows you to go into their home with them, and with being in someone's home, there's a level of comfort that's just not present when they're in an office. It's not present in a hospital, it's not present in an emergency room or an urgent care center. You're there in their space, and whether you're there virtually through a microphone and a camera or there in person walking around on their floors, you're still in their home, and you're a guest. And I really think that is a very important feature of telehealth that I believe many people overlook because there are so many other advantages to telehealth and so many other features to it.

So, with that, I think that there is a place always for it. Just like you don't need home care every single time you see your physician or your nurse practitioner, you don't need home care every time you have a sniffle, you can make a phone call or you can pick up your telehealth program and interact with that person.

However, there are times where it is the right time to be in that healthcare facility. You can't set a broken arm by telehealth. You really can't do a lot of things that are required. If you have a heart attack, or you believe you're having one, telehealth might be how you communicate with your provider up front to say, "I have a problem, what should I do?" And that provider will help you to get to that next step, but it's not always the answer. And so, a big part of what I think our legislators and our other policymakers are facing is this alignment between what's the right amount, what's too much and what's not enough. And early during the COVID era, during the early lockdown period, there was, at first, not enough, and then there was too much. It was that pendulum going back and forth. And now we're trying to find where the swing is going to stop and be just right. And we're still trying to figure that out.

Vaidya: Right. It's a critical question because, obviously, while we've seen, sort of, that explosion of telehealth, like you rightly said, it isn't appropriate for every clinical scenario and that face-to-face evaluation where your doctors can see you and use the tools that they need to use physically to assess you. So yeah, kind of having that perfect balance of hybrid care is really critical.

And coming to how policy plays into telehealth utilization, we did see, during the pandemic, a major loosening of some of those restrictions that had maybe previously prevented telehealth from being used widely. As a result, we saw this huge spike in telehealth use. So, I was wondering if we could go back to the pandemic years a little bit and discuss how the flexibility was enacted, how they really impacted healthcare delivery, patient care and healthcare costs.

Roberts: At the very beginning, access to healthcare per se was very problematic. People were frightened. They didn't know what was happening, it was a novel virus no one understood, and it was really something that you would get in a large group and perhaps a group of people that are sick. So, what do you want to avoid during that? Hospital emergency rooms.

And then you had the issue of -- I'm a registered nurse, my license is in North Carolina. I still today cannot practice telehealth across to Washington D.C. except under the public health emergency. And there are things that I could do across during the PHE, but I can't do ordinarily because Washington D.C. does not have an agreement with North Carolina to allow my license to be active there. So, there was a lot of this, at first, responsiveness to what should we do next.

And then honestly, the media was part of the problem. They promulgated it, it got eyes on television screens, and so people got even more afraid, but it also provided a really great thing, and that was that it put a fire under regulators and policymakers and said, 'You guys have to fix this, and you have to fix it right now because people are suffering, and they don't want to go to the emergency room.'

People who had COVID and had other upper respiratory illnesses really had this great opportunity to engage with their clinician now through telehealth because they changed so many of the rules. But you have to look back to that period before the COVID lockdown started to take place, and there was a slow, very slow, evolution of telehealth from that point.

Back before 2020, the New England Journal of Medicine and Health Affairs and a few other professional journals were talking about how rural communities would benefit so much from telehealth, but there were huge hurdles that had to do with licensing, huge hurdles that had to do with broadband. As we have even seen here in our interaction, we need broadband to share the audio and video between just you and me, and this is a podcast, it's important, but it's not as important as finding out how sick I am and if I need to go to the hospital. So, if you're talking about that in rural communities, and that broadband is absent, that is a problem.

But as the public health emergency came on, many of those things were like, 'Well, we'll have to figure it out.' And, we saw telehealth being done through simple telephone, FaceTime, Zoom, Teams, you name it, every way that you could share audio and video at first was now open, and a lot of the HIPAA regulations and things like that -- just what's more important, acknowledging HIPAA or making sure that Frank has access to his provider? So, we had to change a lot of those rules.

But one of the issues that really came up early on, and again kind of got ignored after the PHE, was people were really very satisfied with their first telehealth visits before the public health emergency, but subsequent visits just weren't that great. It was a novelty. It was fun. I could get on the phone and talk to my physician, and I didn't have to get out of my chair and go in, but I want to make sure that I'm getting the best care I could. So then that all became very dynamic and changed dramatically under the Trump Administration. At first, he expanded the telehealth services as of March 6, 2020, and said, 'Not only are we going to expand the ability of physicians and other direct care providers to practice across state lines and practice across telehealth and get reimbursed for things that were never telehealth, but also we're going to change some of the rules around what constitutes liability.' And those liability rule changes were significant as well. So, for the first few months, while it was the Wild West, it did mature very quickly.

Vaidya: Absolutely, absolutely. And now, it kind of feels like you said our question isn't so much, 'Can we do this?' but 'How best to do this?' Right? How best to do virtual healthcare, and where will that pendulum stop?

So, I'm curious, looking to the future a little bit, we are in sort of an odd moment. I mean just minutes before we hopped on this call, I saw that the American Telemedicine Association released a press note saying that they sent another letter to Congress ordering action on these telehealth flexibilities. So, I can kind of feel that anxiety rising a little bit in the virtual care space. So, could you walk us through what it would mean for healthcare providers, for patients, for even payers who've really come to embrace virtual healthcare in their healthcare delivery models, what would it mean for them if Congress doesn't act, and these flexibilities expire Dec. 31 as they are currently set to?

Roberts: Well, there's a big problem with that in many ways because there are reimbursement issues associated with it. It's not just are you able to get on the telephone or over Skype or Teams, FaceTime and interact with your clinician, but is your clinician going to be allowed to get paid for that interaction? Because that's new. They're called 1135 waivers, and those 1135 waivers expire on Dec. 31. Clinicians who are accustomed to providing telehealth care are going to have to change significantly how they provide that care in an in-person environment again, or they're going to have to encourage their representatives, whether congressional representatives or statehouse or whatever, to make those changes.

Now many of them began that. As you said, the American Telehealth Association has already really been lobbying Congress heavily on this, but organizations like the American Medical Association and others have also been lobbying state houses throughout the country as well, and have made a lot of inroads on that.

The way that these 1135 waivers were initiated was that they started to allow these non-physician extenders, nurse practitioners, PAs, psychotherapists, drug rehab counselors to actually practice without having a physician present. So, like a physician's assistant's license is dependent, nurse practitioners not being the same, but a PA must have a physician on-site to provide medical care. Nurse practitioners, in many states, are allowed to do that without a physician on-site in most states. But the 1135 waiver changed that and allowed a PA to practice without a physician on-site as long as the physician was available, whether by telephone or some other means. So, if these waivers expire, these PAs have to make sure that they're actually on-site with a physician going forward, or they cannot practice, and that's going to have a significant impact on the delivery of care. That could be a very deleterious impact. It could also be a positive impact. It kind of depends on where the practitioners take it, and there's a lot of back and forth, I guess, on how that's going to happen.

And, the other issue is that since early 2020, there has been a kind of drumbeat that infectious disease is at the hospitals, and you shouldn't go to the hospitals. Infectious disease is at the clinics and shouldn't go to the clinics. If these telehealth rules roll back, there has to be some marketing out to people saying, 'It is safe to go to your provider in an in-person space. It is safe to go to your hospital.' That's going to take a lot longer to reassure people than it did to tell them in the first place.

Vaidya: Absolutely. That information will be so critical because you don't want people trying to contact their provider via telehealth and just suddenly finding that they can't and that they have to go in and then worrying with, we are in the middle of our respiratory illness season, so even though we might not be at the COVID heights that we were at a few years ago, there's still plenty of infections out there that you could catch that people are wanting to avoid and avoid the doctor's office to do so. So absolutely, that's going to be critical.

So, I wanted to delve a little bit more into congressional action or lack thereof when it comes to these flexibilities. We've seen that there really is bipartisan support. I think it's one of the few healthcare areas that it almost didn't matter whether it was going to be a Democrat presidency or Republican presidency because either way, both sides of the aisle appear to be championing telehealth. So, there is this sort of well of support there, but why do you think Congress has yet to pass any extension and are you expecting an extension even in some sort of year-end package?

Roberts: I'm attending a conference right now for the Assistant Secretary for Technology Policy, of which telehealth is a big technology policy. So, before coming into today's interview, I polled a few folks that I know at this conference who are pretty well-known in the community and asked them about this. And we are kind of all in agreement that while both the Republicans and the Democrats, the House, the Senate, and the Executive are all in favor of telehealth, all of them see it through a slightly different lens, and in ambiguity comes indecision.

We have a lame-duck Senate, we have a lame-duck House, and we have a lame-duck president. No one is very interested in making a name for themselves by being the one that passes this. It's still something of a political football. There's a policy expert from years ago, a guy named John Kingdon, who said that policy always leads to politics, and this is a very political issue regardless of the fact that everybody agrees. Extending the provisions has this potential to shift a balance of power from the states, where the states want to keep their power, to the Fed, where they want to keep their power, or from the Fed back to the states. Whenever you have power issues, there will always be political issues.

And there's another issue which has come up as part of this, and that is that much of what is happening in telehealth has to do with the licensing, and licenses are from states. So, there's the compacts that allow an individual to practice across different states, but many of those compacts don't apply to medicine, for instance, or certain parts of behavioral health. Under the public health emergency rules, they were allowed to practice across state lines, but now, if I were a psychotherapist and I wanted to provide therapeutic care to somebody in another state, today under the PHE, I can do that without being licensed in that state. Jan. 2, absent the PHE extension, I can't -- and I'm actually practicing without a license, which is a felony in some states, and at least a tort in almost every state.

Many are saying that maybe we should go to a federal license so that people are able to practice anywhere in the United States. I'll give you an example of why I don't think that's ever going to happen. I looked at what states make financially from licensing. Texas, which reports its licensing revenues, makes $47 million a year on medical licenses only, and that's just the licenses, that's not the continuing education, that's not the fines for practicing poorly, that's not any of the other stuff, it's just that. You put all those together, and you add them up in each state, you multiply that by the 50 states plus the six non-state territories -- there's a lot of money there, and the states don't want to lose those revenues. So, a federal license is probably not going to happen. So, there's that issue.

And then there's the third issue, which I think is something I know I mentioned slightly earlier, and that is the issue of liability. If I am practicing telehealth, and it's under the PHE, and I misdiagnose you, and I'm a physician, I misdiagnose you and say you have something. If I think that's COVID or COVID-related or an upper respiratory illness or something else that's covered under those liability limitations, I'm okay if I misdiagnose you, I don't have to worry about you suing me for malpractice, it's covered. Now good ethical practice is going to prevent me from doing it, but I'm a human being, and I'm going to make mistakes, and if you're separated by 20 miles, 100 miles, 300 miles from me, and all I have is a picture of you and what you tell me, I have a much higher likelihood that I'm going to misdiagnose you. Those liability limitations end on Dec. 31. That is going to be a big issue as well.

Vaidya: Yeah, that definitely sheds light on why there's a sort of hesitancy that we're seeing despite some of that bipartisan support.

And I'm curious, what are some of the other sticking points in terms of extending or solidifying these telehealth flexibilities? I'm particularly interested in the latter. Obviously, there's one issue of the extension, but there's the other issue of just making them permanent. I mean, even in the last few years, we've seen countless bills being introduced in Congress to make these telehealth flexibilities permanent. So, are there any potential pitfalls that we're not really seeing, looking at it from sort of the provider or the patient point of view where telehealth appears to just sort of be this boon as far as healthcare access is concerned? What are some of the potential pitfalls that proponents might not be considering as they kind of push to make these flexibilities permanent and not just extend them by a few more years?

Roberts: So I live in a very small town, Washington, North Carolina. It's on the inner banks in North Carolina. I have the benefit of living near Greenville, North Carolina, where East Carolina University and their university hospital are located, and we have an urgent care clinic that's part of ECU that's right in the middle of our town. That's a good thing. Telehealth has caused some of rural areas to not get access to the funding to build some of their brick-and-mortar clinics, urgent care centers, things like that, because they had to provide clinicians in these telehealth centers to provide support for people that lived in these rural areas to the exception of building these brick-and-mortar facilities and extending facilities. Or in many cases, there have been facilities that were closed because people in rural areas weren't going to those clinics during the public health emergency, and now they're being put in a position to either increase the telehealth capabilities to those areas or open those brick-and-mortar facilities. And frankly, it's cheaper to expand the telehealth capabilities than it is to rent, heat, put electricity into a brick-and-mortar facility.

One of the things that I heard in a rural area, where I was sitting and having dinner and listening to a conversation at a table nearby, a few gentlemen were talking about how they no longer have their clinic. In their words, it got closed from COVID, and now it'll never get opened again, and I don't care how many times I call my doctor if I fall and bust my arm, he can't fix it over the phone. So that's some of the pitfalls. Now, of course, there are tons of advantages, but that pitfall is a pretty big one that is rather challenging to reverse.

There's another issue with the physician fee schedule. So, the physician fee schedule, in advance of the end of these telehealth extensions, has covered a lot of what was being cared for, covered under the public health emergency. And that is actually very helpful because it is providing these clinicians with the ability to get paid for certain aspects of telehealth if they're under Medicare or in some cases Medicaid. So, there's pluses and minuses across the board for this.

I heard another conversation just several minutes ago, actually before I came in here. We were talking about artificial intelligence. Artificial intelligence is actually making telehealth smarter in a way that in-person care can't because if you're in my office, and I'm a physician, I'm looking at you, I'm not looking at my computer. I know that my communication with you is a direct communication. You're hearing what I have to say. I'm hearing what you have to say, and I'm observing you in a 360-degree way. What I lack in that ability on telehealth I can make up for by the fact that half of my screen now can be this prompt engine that tells me the next reasonable thing that I could say that would help this patient or the next reasonable question I could ask that would help this patient. So, back to the pluses and minuses of both.

Vaidya: Plenty to find there as you look into it, and that also gave me a new thought of AI being introduced in telehealth is great, but it also then potentially opens up to some of the cons of AI itself, some of the biases we're seeing there, some of the challenges we're seeing in terms of AI integration. So again, more plus and minuses as we even look into integrating those technologies.

So, we're going up towards the end of our time here, but I did want to discuss one final point before we close out our conversation today, and that is kind of looking into 2025, looking into key pieces of legislation, what are you keeping an eye out for? What should we be watching for? Yeah, I would love to hear what efforts to pass permanent legislation are really catching your attention at the moment.

Roberts: Well, obviously, the Public Readiness and Emergency Preparedness Act, or the PREP Act, which was what passed to expand telehealth in the first place -- is that going to be expanded? I don't think it's going to go into an immediate expansion, but I do think that there is an opportunity for it to be reorganized in a way that's going to be useful. People are going to find the pieces of it they like, but it's not going to happen before Dec. 31, in my opinion.

I think that there are going to be more healthcare privacy rules coming out that are going to really redress HIPAA, that are going to expand some of the protections that are built into that.

Another that I know is going to be coming up, I haven't seen anything really new from it, is that artificial intelligence is going to become a big part of healthcare, and I believe that there will be a lot more legislation and activity around how we can protect people from inappropriate use of AI and manage AI effectively.

One of the conversations that I've been involved in quite a lot over the last few months is about using artificial intelligence bots to actually provide first-level healthcare in chat, and how can we either prevent that from happening if it's inappropriate -- because in some states it's practicing medicine, healthcare, in some way, without a license -- but how can we also create tools around it and standardize it in a way that works to effectively provide that care and don't deliver it just to the people that can't afford to go in to see a physician. People that have good insurance are the only ones that are going to be able to see a physician, and everybody else gets stuck with an AI. So, we're going to start seeing more and more legislation that's going to protect people from inappropriate use of artificial intelligence. Those are the things I'm seeing coming up in 2025.

Vaidya: Fantastic. Yeah, definitely a lot of movement, and will be interesting to see which of these policies, pieces of legislation, which ones really stick, which ones kind of we don't really hear about again, but either way, a lot's happening in the virtual healthcare space. Well, thank you so much, Darryl. I really appreciate your time today. Here's looking to health in 2025.

Roberts: Thank you very much.

Kelsey Waddill: And thank you, listener, for tuning in. If you liked what you heard, head over to Spotify or Apple and drop us a review. We'll be choosing some of our reviews to be read on the show in appreciation, so keep listening through to the end because you might get name-dropped. See you next time. Music by Vice President of Editorial Kyle Murphy and production by me, Kelsey Waddill.

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