As the public health crisis caused by the novel coronavirus changes daily, so do health care resources and government responses.
Mark Fogg, a legal consultant to COPIC and the company’s former general counsel, said the company approaches the current health crisis from the perspective of what supports health care providers to provide the best care they can to their patients under difficult circumstances.
He has been keeping both eyes on health care directives issued in different states in response to the spread of the novel coronavirus. Fogg talked with Law Week about why telemedicine and provider licensing are two crucial components of expanding health care resources to fight the pandemic.
LAW WEEK: Executive orders from states are pushing more people toward telehealth and helping make sure there’s an adequate health care workforce to handle COVID-19 caseloads. Are you seeing that there are common threads between orders that governors are issuing from different states? Or are we really seeing a patchwork of approaches in what states are doing?
FOGG: Probably the predominant common thread is about telehealth. That’s probably the area that is going to be most impacted in the long term by this COVID crisis.
The other common thread is figuring out ways to expand the health care workforce. It’s easier to get licensed in individual states by health care providers in other states by reactivating health care providers who have retired or allowed their licenses to expire or lapse. And in some states, [this is] a less common thread, but health care providers who have not quite yet obtained their license, like some respiratory therapists who are in their final stages of education, they can go ahead and get a temporary license or provisional license during the crisis. That’s in [fewer] states.
LAW WEEK: When we’re not in a pandemic, rural access to health care is what I typically think of as a primary use of telehealth and telemedicine. Now we’re seeing the social distancing requirements and just so much concern about how easily the virus can spread and hospitals having to focus on just emergency operations, things like that.
Can you talk at all about just how this COVID-19 crisis is changing the contexts for which telehealth is needed? Do you see expanding the use of telehealth into more context beyond just rural health care? And do you see that as being a permanent change in the contexts where it does turn out to be efficient and successful?
FOGG: Some people have gone ahead in telehealth over the last five years and really learned it and utilized it. But because it’s so brand new, a lot of barriers are in place, both technologically and regulation-wise, [and] a lot of health care providers just get frustrated in doing it. So the interesting thing that has happened with this COVID-19 is that most of the governor orders, most of the Department of Health, most of the medical board regulations and rules or the advisements have been to lower what have been existing barriers in normal, non-crisis times to really encourage the use of telehealth for a lot of reasons.
One is to avoid contact between individuals. And secondly is to really save the personal protective equipment for those situations where it is direly needed.
So, I think it’s going to really have a big impact in the future, because I think a lot of practices who are hesitant to use telehealth now have to, and so they’re just learning how to do the logistics and technology of it. I think health law lawyers are going to have to really learn how to best advise their clients in the use of telehealth.
I think the third thing that this is going to do, not just in telehealth but other areas, is … this COVID-19 crisis is going to just further dissolve the state borders in issues dealing with telehealth and licensure. States are still primarily responsible for licensure, and telehealth goes hand-in-hand with licensure issues.
I think most of the focus on telehealth law in the last five years has been on interstate use. You know, can a Colorado doctor provide care to a resident of Nebraska? The law is where you have to be licensed, and where the care is administered, is where the patient is located.
So, if a Colorado doctor does telehealth with a Nebraska resident, they have to have a Nebraska license, And the same is true for the Nebraska doctor in Colorado. So, most of the law is focused on that interstate piece. I think this crisis is going to accelerate the use of telehealth intrastate, so that it’s going to become much more common within a metro area; within a town.
[Before the crisis] it had to be audiovisual, because the theory is with telehealth you want to be able to see as well as hear. Because of the crisis, most of the states are now allowing audio-only telehealth business and allowed it to be included in the definition temporarily of telehealth.
And most states — not all — have passed what we call parity statutes, which says that a provider can be reimbursed for a telehealth visit at the same rate that they can be reimbursed for inpatient visits. Colorado passed such a statute several years ago.
LAW WEEK: And licensing of health care workers is closely tied to telehealth, but that licensing also comes with its own set of issues that states are having to address right now, whether reactivating licenses of people who are retired or making it easier to get licensed in other states to lower the barriers to make sure that there’s enough of a care workforce.
One thing that isn’t quite as common among the states orders was temporary licenses for health care workers who aren’t licensed yet but have been in training. Are there any common threads between the states that are making that a part of their orders? Or does there seem to be a reason that is not as common as some of the other directives or approaches?
FOGG: What I see as a common theme through almost all the states is that there has to be some combination of having a license in good standing that’s unrestricted somewhere — meaning it isn’t part of discipline at this point — and that there has to be some type of notification to the host state that you’re going to be practicing telemedicine in that state.
Allowing people to practice who have not been licensed as of yet, I think it’s rarer because the quality control is more difficult. I think all of the states that allow it also have a provision that they can only do it after there’s been a review on their qualifications and education.
And that’s a pretty labor-intensive process to go through now, where it’s much easier to rely upon the licensure in other states that that provider has the requisite skills and knowledge. So, I think that’s the main reason why we’re not seeing it as much as we see the other things.
LAW WEEK: In light of needing to address the health care workforce, does that bring up any concerns about potential liability issues that states might be opening up if they are loosening licensing requirements in some way or another?
FOGG: [States] are limiting them. No state is allowing an emergency license that is going to extend beyond this crisis. So, they’re all limited to the duration of the crisis, and maybe 30 days beyond when their state terminates its state of emergency.
LAW WEEK: COPIC has a couple of different hotlines. There’s [one for] risk management, for HR, and for legal questions. I’m curious about common questions those hotlines are getting from policyholders right now.
FOGG: There’s been a bit of evolution in the questions. A month ago, a lot of the questions were over trying to set up telehealth: Is this going to comport with what the current government orders are? So, a lot of it was people setting up the infrastructure to provide the care that they believed they were going to need to provide.
And then then we started to get some questions regarding, there’s two or three people who have come down with the coronavirus in our practice, how do we best advise our patients of that while honoring the private health information of those employees in our practice?
So, we saw this evolution of, it’s not yet hit [and] building the infrastructure to we’re now experiencing it.
We haven’t gotten to the next level, and hopefully we don’t; Colorado has not become an epicenter. If we hit a point where allocation of resources becomes a significant concern with personal protective equipment and ventilators, et cetera, then those become different questions that will have to be addressed.
LAW WEEK: The hotlines seem like a useful method for tracking what the concerns are at the top of providers’ minds in real time. It seems like a good way to track the evolution of what issues and questions providers are really thinking about right now.
FOGG: The areas I just discussed with you, telehealth and licensure, are by far the largest area of questions in certainly the patient safety, risk management and the legal help lines. In our website, we’re able to track the clicks. So if you looked at our website, we have it broken down into about eight categories. Telehealth far outstrips any of the other categories.
—Julia Cardi