Telehealth: On state and federal laws, artificial intelligence, and getting primary care physicians involved

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By now it’s no secret that telehealth and telemedicine boomed in 2020 when physicians had to close offices and patients sheltered in place to slow the spread of COVID-19.

But advocates for telehealth were asking for policy and law changes years before the pandemic, and that work continues now.

The American Telemedicine Association (ATA) and its ATA Action advocacy nonprofit are backing the bill called Creating Opportunities Now for Necessary and Effective Care Technologies, or CONNECT for Health Act of 2023, with versions pending in the U.S. Senate and House of Representatives. It’s likely to prompt a continuation of national discourse on the best ways for physicians to treat patients using improved communications technology.

Kyle Zebley
_{American Telemedicine Association}

Kyle Zebley, senior vice president for public policy of ATA and executive director of ATA Action, sat down with Medical Economics to discuss the recent past, current landscape, and future possibilities of telemedicine in Congress and in practice.

This interview was edited for length and clarity.

Medical Economics: Can you describe the telehealth landscape right now?

Kyle Zebley: As trying and as difficult a time as the COVID-19 pandemic was for the American people and for people around the world, it's been broadly acknowledged that telehealth is one of those silver linings of the pandemic. We saw a huge amount of growth as an industry in terms of telehealth utilization during the pandemic during that shelter in place period. We were able to really become a permanent fixture of the U.S. health care system. If people didn't really know much about telehealth prior to the pandemic, now we're at a place where patients, providers, policymakers, the public at large, are all very cognizant, aware of, and supportive of telehealth. Most Americans have now had some interaction with telehealth and so we're still in a period of pretty rapid growth. We're looking to cement the gains that we've achieved during the pandemic and make sure that there's no backsliding the level of access that has been achieved over the last few years. But this continues to be a very exciting time for the telehealth community three and a half years after the onset of the pandemic.

Medical Economics: Regarding the CONNECT for Health Act of 2023, what is the most important provision for physicians? What is the most important provision for patients in this version of the legislation?

Kyle Zebley: It's the same answer or answers, I would say, for both providers and patients. One of the best attributes of this great piece of legislation is, it would make permanent the flexibilities that came about for the pandemic. That means that patients can receive care from Medicare providers regardless of their geographic location and regardless as to what their originating site is. Prior to the onset of the pandemic, according to a standing law, you needed to be in a defined rural area outside of a metropolitan area, and you needed to be within the four walls of a provider's office to receive reimbursable telehealth care. Obviously, the technology had long since passed by those outdated provisions, but that's where we were prior to the pandemic. CONNECT for Health Act would permanently remove those geographical originating site barriers. So too would it ensure that there is no in-person requirement for telemental health care moving forward as there is according to current law, to make sure that provision never sees the light of day, which, again, would allow for the full potential of telemental health in that context. Making sure that there's no backsliding back to a pre-pandemic mentality, that's the great attribute for patients and for providers if we were able to see the CONNECT for Health Act become law.

Medical Economics: The ATA website is loaded with action letters to different state legislatures just this year that are considering different telehealth regulations. How important are the state regulations? And is there a wide variation among the states?

Kyle Zebley: First answer to your question, how important are state legislatures? Our members that are part of the ATA and other folks that are involved in the health care system know very well that as important as the federal framework is and as important as federal legislation and federal regulations are, at the end of the day, probably the aspect of your organization that will be most impacted by government, will be state governments impacting your organization. That's where questions about what the process is to get licensed as a medical professional, the board to which you're accountable, what the standard of care is, what the age of consent is, what you can do with controlled substances above and beyond the federal floor under the federal standard provisions regarding commercial coverage of health care and telehealth, provisions around Medicaid coverage of telehealth – those are all predominantly state-based concerns. And that's authority that state legislators, state regulators have. It's really no understatement to say that organizations practicing telehealth live or die as to what happens at the state level.

And it's important to keep in mind that no two states – in answer to the second question – are the same. No state handles telehealth the exact same way as another. States vary pretty widely. Some states have brick-and-mortar or in-person requirements, which we're very opposed to. Some states slice or dice what technologies and modalities you can deploy and what providers can deploy them. One of the things that we have as a challenge for ourselves is to make sure that we're leveling the playing field for telehealth. We're not asking to be held to a lower standard, but we should not be held to a higher standard because at the end of the day telehealth is health, not something separate and apart. The same standard of care that would apply for an in-person visit applies to a virtual visit as well. And if you can't do something virtually, it should be the licensed medical professional making that determination, not a regulator, not a legislator.

Medical Economics: What are some of the potential ways to integrate artificial intelligence into telemedicine services? Are there any risks involved? And what do you see are the some of the next steps for using it in patient care or regulation?

Kyle Zebley: A couple of things: One, it's already being utilized in terms of algorithms being deployed to offer up some potentialities with the oversight of licensed medical professionals. So that's important to keep in mind. Like the rest of the United States economy, the potential for AI is already being realized in part by organizations, both nonprofit and for-profit in the health care space across the country, obviously including telehealth.

The potential for its use in future is endless. We have, for instance, reams of data that's being collected through the deployment of telehealth or virtual care technologies such as remote monitoring devices, connected health devices, other digital biomarkers, reams of data that we can use AI to really make sense of and create bespoke, individualized care plans for Americans across the country. So that way, they can live longer, healthier, better lives. We can finally begin to harness the huge amounts of data that our health care system produces, and then to deploy the lessons learned from that data in the best interest of the patient. So that's the great potential.

Importantly, we have to keep in mind that at the end of the day, you know, when we think about the deployment of AI, we must consider it a tool like any other in the provider’s toolbox. It's not an end of itself. It has to be used in a way that's consistent with medical ethics, with the oversight of a human being that's deploying this technology the way that they would deploy other technologies and other tools. There's no way to short-circuit the Hippocratic Oath, there's no way to short-circuit medical ethics when you deploy AI. That's important.

As we think about what's happening now, that the federal government and certainly state governments are just starting to grapple with the full implications of AI and what we have to do, in our judgment, and in my judgment here at the ATA and ATA Action, is that we have to obviously make sure that there are privacy protections in place, obviously make sure that we are not exacerbating questions of injustice in our health care system, or exacerbating existing inequities. But so too, we must make sure as policymakers at the federal level, on the state level, and internationally grapple with this, that they're not unduly shortchanging that full potential for telehealth and for health care generally, the full potential of AI that can transform our health care system and make sure people live those longer, healthier lives that we all want them to.

Medical Economics: Our main audience is primary care physicians. What would you like to say to them or what would you like them to know?

Kyle Zebley: One, I would say if you want to make sure that your patients and your practice continue to benefit from the use of telehealth, you need to get your voice out there. You need to make sure you're being heard. Obviously, there are organizations like the ATA, ATA Action that your organization could join – and I'd recommend joining, to make a shameless plug – to make sure that we've got gas in the tank to fight for telehealth access. However, as has been said before, politics is not a spectator sport, it requires participation. If you want to make a difference you need to call your state legislature or your state regulators, you need to call your member of Congress or the White House and make clear that you want don't want any backsliding, you want to make sure nobody goes off that telehealth cliff, you want to make sure that we cement positive gains and build upon them for in terms of telehealth access that have happened during the pandemic.

Two, I would say you really need to get smart on how you're deploying telehealth. Obviously, it's not appropriate in all circumstances and it varies by profession. Primary health care doctors really stand to be able to gain as much as just about anybody from effectively deploying telehealth technology to make sure that they can be more efficient in the care that they are delivering to their patients and so that they can also be more responsive to the desires of their patients to do as much as possible virtually, what they do not need to do in-person. There's always going to have to be that laying the hands on patients at some step along the way in terms of the patient's interaction with the health care system, but so much of this can be done virtually. And my suggestion to our physicians across the country, particularly our primary health care professionals, is, don't get left behind. Make sure you're keeping your organization and your practice and medicine up to date in deployment of telehealth technology.