A Telehealth Explosion: Using Lessons from the Pandemic to Shape the Future of Telehealth Regulation
Texas A&M Law Review (Forthcoming, Fall 2021)
58 Pages Posted: 28 Aug 2020 Last revised: 28 Sep 2020
Date Written: August 5, 2020
The coronavirus pandemic has changed the way individuals work and live, with an ever increasing reliance on technology to carry out daily life. Like schools and business, physicians and physician offices around the country not tasked with treating patients suffering from COVID-19 shuttered their doors and turned to technology, through telehealth, to render necessary healthcare services. Telehealth services, generally defined as being able to diagnose and/or treat a patient via technology as opposed to in-person, have been around for some time, but there have been significant barriers that have hindered widespread growth. Despite this, telehealth advocates have been doggedly and slowly pushing for expansion and trying to break through the known obstacles for decades in an effort to hopefully achieve the touted gains from telehealth, such as enhanced health care services to rural and medically underserved populations, more integrated care across platforms to coordinated providers all treating the same episode of care, and greater convenience and efficiency for the patients and providers for some of the more basics health care needs. Now, the global pandemic has pushed telehealth services into the mainstream and, like a set of dominoes, various federal and state restrictions and limitations that have been built up over the years around telehealth were suddenly waived in order to allow patients to continue to seek necessary medical care. Unlike before, however, patients now found themselves able to access such services from their homes or other places of residence. While some of the restrictions previously in place are likely to return, many are speculating that the pandemic has finally been telehealth’s “tipping point” and could usher in more robust and widespread use of telehealth even after the pandemic has passed or at least waned. As telehealth services have become more widely available and proven to be useful, it now seems unlikely there will be a return to the previous status quo for the industry, but this still leaves the industry, regulators, and enforcers to contemplate what the telehealth industry should look like in a post-pandemic environment. This is a unique time to be able to observe the use of telehealth in an unfettered state and, through that lens, provide legislators and policymakers with valuable data to reconsider the delivery of telehealth and its regulatory structure with the goal of enacting practical and workable regulations that advance efficient and effective health care delivery.
To this end, Part I of this Article will examine the history of telehealth, from its early origins, and define what telehealth means today in all of its various forms. Part I will further explain the restrictions and regulatory structure, both federal and state, that applied to telehealth prior to the coronavirus pandemic and the then-current enforcement trends. Next, Part II will describe all of the various waivers and regulatory changes that went into effect in response to the coronavirus pandemic and examine how the pandemic has fueled increased telehealth growth. Part II will also analyze trends realized during the pandemic and other usage data to consider the impact and effect of the waivers and loosening of restrictions on telehealth services. This Article will then argue in Part III that legislators and regulators should avoid either a return to status quo or a permanent adoption of all of the waivers in effect and should instead utilize data and evidence gathered during this time period when restrictions were largely lifted to understand the true concerns raised by telehealth usage and consider a revised regime that focuses its attention and efforts on those aspects of the regulatory structure that are most detrimental to the health and safety of patients and consumers. It will further provide some general recommendations for reconsidering the telehealth regulatory regime once the public health emergency has subsided in order to promote the use of telehealth in a way that enhances and enriches the benefits of telehealth, without harming patients and consumers. Finally, Part IV will conclude with some final thoughts regarding the importance of reimaging the telehealth infrastructure for a sustained and successful future.
Keywords: telehealth, telemedicine, health, medicine, health care, public health emergency, pandemic, technology, telehealth waivers
JEL Classification: I1, I12, I18, I19
Suggested Citation: Suggested Citation