By Charles Kels
April 28, 2020 at 5:00 am ET
In 1962, physicist Thomas Kuhn coined the term “paradigm shift” to describe how scientific progress is often driven by revolutionary events rather than incremental developments. The shock of COVID-19 has accelerated the long-promised revolution in health care, dramatically altering in just a matter of weeks how care is governed and delivered.
As policymakers and experts ponder when, and to what extent, life and commerce can return to “normal” after the pandemic, the health care transformation is likely here to stay.
For years, champions of telehealth and a more agile health workforce have faulted legal and regulatory barriers for slowing innovation in health care delivery. As the nation has responded to COVID-19, these longstanding restraints have been loosened or removed at a remarkable pace. In keeping with the scope of the current crisis, much of the regulatory relief has gone far beyond the typical Medicare and Medicaid waivers issued during a public health emergency.
A case in point is the use of smartphone applications for telehealth services. Under the federal health privacy regulations, health care providers are responsible for implementing appropriate security safeguards in electronic communications to include encryption of data at rest and in transit. Even though many popular technologies fall outside the purview of the Health Insurance Portability and Accountability Act, doctors’ offices and hospitals may nonetheless be held accountable when adopting the platforms for clinical use.
This status quo is often vexing for clinicians and inconvenient for patients. Technically, it means that health professionals could be on the hook for penalties in the event that health information is exposed via hack. Practically, the result is that many of the video chat and related applications preferred by consumers are simply too risky for clinicians to use and therefore not an available option for patients.
Recently, however, the Department of Health and Human Services announced that it was exercising its enforcement discretion during the COVID-19 emergency to forgo penalties for HIPAA noncompliance in connection with telehealth. With the aim of “empowering medical providers to serve patients wherever they are,” HHS specifically listed Apple’s FaceTime, Facebook’s Messenger video chat, Google Hangouts video, and Skype as popular applications now available for virtual health visits.
A few days later, President Donald Trump hailed the dramatic expansion of telehealth during the coronavirus task force press briefing, musing that “we’re going to change the way our country functions, medically and probably in other ways, because of what’s going on right now.” While HHS’ notice of enforcement discretion has no built-in expiration date, it is meant to be temporary. Yet returning to a world in which the only video communication products available for remote consultations are those that market themselves as HIPAA-compliant may be easier said than done.
These more secure platforms are not as familiar to patients and viewed as less user-friendly. Now that patients have experienced talking to their doctor like they do with everyone else, there may be no going back.
Similarly, state licensure and practice laws have frequently been scrutinized as an impediment to both telehealth and access to care. Since states define practice requirements based on the location of the patient, a physician would theoretically need to be licensed in all 50 states to practice telemedicine nationally.
In fits and starts, both Congress and the states have made progress in easing licensing rules during declared emergencies, but these efforts have tended to be more of a patchwork than a comprehensive solution. Outside of emergencies, the Nurse Licensure Compact is an oft-cited model for fostering mobility because it confers automatic reciprocity for nurses among all 34 member states.
The Interstate Medical Licensure Compact is a similar effort launched for physicians in 2014, although the reciprocity it affords is an expedited pathway to licensure rather than automatic recognition. Thus far, 29 states, the District of Columbia and Guam have signed on.
In a White House briefing, Vice President Mike Pence announced that in response to COVID-19, HHS would be issuing a regulation to “allow all doctors and medical professionals to practice across state lines to meet the needs of hospitals that may arise in adjoining areas.” As it turned out, no such regulation was issued because HHS lacks the authority to waive state licensure requirements other than for purposes of federal benefit programs (which it had already done).
However, HHS Secretary Alex Azar subsequently sent both a letter and guidance to governors calling for “immediate action” to waive licensing requirements for out-of-state providers and ease the scope of practice rules limiting certain health care professionals. Governors have largely heeded the call, especially in the hardest-hit areas. In New York, Gov. Andrew Cuomo (D) issued sweeping executive orders allowing health care providers from any state to practice there and eliminating physician supervision requirements for advanced practice nurses and physician assistants.
Although predicated on the assumption that the new flexibilities afforded by federal and state authorities will be rolled back once the crisis subsides, the empowerment of health care providers to reach patients through smartphones and across state lines may be just the disruption the gurus of health care innovation have long awaited. Legal and regulatory barriers, once felled, can be hard to resurrect — especially if the changes unleashed are ultimately viewed as best practices.
After the COVID-19 outbreak, the health care delivery ecosystem will look conspicuously different. Tragedy may have nudged the future of health care into the present.
Lt. Col. Charles G. Kels is an attorney for the Bureau of Medical Services of the Department of State and a judge advocate in the Air Force Reserve. Opinions expressed in this article are those of the author alone and do not necessarily reflect those of any government agency.
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