How Congress Can Avoid Doing More Harm Than Good with Telemedicine

Telemedicine has proved itself a convenient and cost-effective way to extend health care services to those who need them most. As a result, this sector of the health care market has been growing at breakneck speed in recent years.

As telemedicine’s growth accelerates, its most passionate proponents and outspoken critics have been arguing in the background about the need for legislative action to either facilitate or limit its growth. In a recent posting to The Apothecary health care blog at Forbes.com, financial analyst John Graham cautions against congressional action that in the end could do more harm than good to telemedicine and health care in general.

21st Century Cures Act Hailed

Graham’s blog post at Forbes.com summarizes arguments he made in testimony before a House subcommittee in July 2016. In that testimony, Graham, a senior fellow at the National Center for Policy Analysis, praised the House for its passage of the 21st Century Cures Act in 2015. That legislation, if eventually approved by the Senate and signed into law, would implement policies leading to “a responsible and responsive regulatory environment for mobile health apps,” said Graham.

Graham went on to say that “misguided policies” could very well lead to legislative action at the federal level that would upset the delicate balance between state and federal responsibilities and jurisdiction. Specifically, he cited three areas in which congressional action might have consequences that were both unintended and unwelcome. Those three areas, said Graham, are state licensing of physicians, interoperability of health data, and Medicare payments for telemedicine services.

State Licensing of Physicians

In the area of licensing of physicians, Graham pointed out that this responsibility has historically been delegated to the states. However, as the use of telemedicine has grown, often bringing together patients and health care providers from different states, some have argued that physicians should be licensed at the federal level. To do this, Graham argued, would constitute “federal overreach that would be constitutionally suspect and unnecessary, because states are already solving this problem.”

As evidence of state progress on the licensing front, Graham cited data from the American Telemedicine Association’s 2016 survey of telemedicine regulation in all 50 states. In that report, ATA gave 20 of the 50 states its highest composite grades in terms of policies that promote the adoption and use of telemedicine services. He acknowledged that some states are lagging behind in their acceptance of telemedicine and in their adoption of regulations that encourage its growth. However, Graham suggested that it is best “to allow states to adopt, adapt, and improve appropriate regulations while learning from each other.”

Graham also pointed to the Interstate Medical Licensure Compact, which as of mid-2016 had signed up 17 states, with another nine states taking initial legislative steps to do the same. That compact was established by the Federation of State Medical Boards and is an effective alternative approach toward “achieving a national standard of licensure through professional collaboration,” he said.

Graham noted that Congressman Fred Upton, chairman of the Committee of Energy and Commerce, of which the subcommittee is a part, had already taken steps toward federal recognition of the interstate compact. He pointed out that Upton’s Patient Choice, Affordability, Responsibility, and Empowerment (CARE) Act, a Republican alternative to Obamacare, recognizes the important role such interstate compacts can play in coordinating health care nationwide. In light of this recognition, Graham urged the committee “to allow the challenge of physician licensing to be resolved at the state level.”

Interoperability of Health Data

On the subject of interoperability of health data, Graham said that funds provided under 2009’s Health Information Technology for Economic and Clinical Health (HITECH) Act had financed a sharp increase in electronic recordkeeping by health care providers. Nevertheless, certain providers have gone out of their way to block access to their health data by rival providers. This has resulted in expensive and time-consuming efforts at the federal level to track down noncompliant providers and force them into compliance.

Graham said federal intervention to force HITECH compliance “is no more likely to succeed than trying to compel Boeing and Airbus to share the plans for their next super jumbo jet.” Here again, Graham pointed to successful efforts at the state level that, at least in some cases, have created the framework for cooperation between health care providers.

As an example, he cited an initiative in New York under which six hospitals and physician practices have agreed to pool de-identified patient data for research purposes. This pool already has data on 5 million patients and will eventually grow to include the records of 10 million, which is half the population of New York State. “If states were the locus of oversight for interoperability,” said Graham, “researchers, patients and other interested parties might update the regulatory apparatus faster than waiting for Congress to act.”

Medicare Payments

Turning to the question of Medicare payment for telehealth services, Graham said that Congress historically has taken the somewhat short-sighted position that this technology is best used to give rural patients access to specialized medical care usually available only at urban medical centers. As a consequence, Medicare’s position on payments for telehealth services largely reflects this view which, while true, grossly underestimates the benefits telemedicine can offer. According to Graham, “telehealth is beneficial for patients in every environment.”

Graham went on to point out that health care services provided via telemedicine are almost always less costly to providers than in-person care. The federal efforts to win parity between telemedicine services and in-person services overlooks this financial distinction and if pursued will prevent Medicare from savings it might otherwise achieve. He added, “There is bipartisan agreement that Medicare should move away from paying fee-for-service and towards paying for value.”

Graham explained that widespread acceptance of basing payments on value would require Medicare “to give up its futile efforts to determine fees for every single procedure a physician executes, whether in person or remotely. Instead, the rapid adoption of telehealth should be exploited for opportunities where taxpayers, patients, and providers are all rewarded for reducing costs.”

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