[co-author: Dannielle Melendez]
As policymakers have responded to the COVID pandemic, they have implemented a variety of changes that create tremendous opportunities in the post-COVID world. Perhaps the most significant of these is in the area of telehealth. The remote delivery of healthcare and health-related services has tremendous implications for patient access to care and quality of outcomes, and stakeholders across the country are actively examining how best to leverage telehealth technology to achieve those goals.
Nowhere is this truer than in New York State. Before COVID, New York, like many states, strictly regulated what services could be delivered via telehealth, which providers and patients could utilize telehealth, and which telehealth modalities were permissible. While the laws governing telehealth were becoming gradually more permissive, progress was slow. In contrast, one of the first Executive Orders issued by the Governor in response to the pandemic waived key legislation “to the extent necessary to allow additional telehealth provider categories and modalities, to permit other types of practitioners to deliver services within their scope of practice and to authorize the use of certain technologies for the delivery of health care services to established patients, pursuant to such limitations as the commissioner of [the relevant] agencies may determine appropriate . . . ” Executive Order 202.1. At the same time, the Legislature passed and the Governor signed legislation that expanded the list of professionals permitted to utilize telehealth and the list of permissible telehealth modalities, and that provided some additional protections to patients receiving telehealth services.
The general consensus (with some exceptions) seems to be that the expansion of telehealth services was generally effective. Patients were enabled to access vital services while minimizing risk of COVID exposure, and some of the concerns about remote healthcare delivery (e.g., diminished quality of care, increased opportunity to violate scope of practice or informed consent laws, etc.) seem not to have been a major concern. Accordingly, the Legislature recently further expanded the permissible uses of telehealth, removing telehealth-specific limitations on the originating and destination sites in telehealth delivery, and further expanding the list of services that can be delivered via telehealth. In short, New York State policymakers have essentially doubled down on the promise of telehealth.
However, some barriers and concerns remains, particularly including financial barriers. Inherent here is the recognition that theoretical access to telehealth is meaningless if a patient or provider cannot afford the necessary technology. Similarly, telehealth will continue to be underused if it is not reimbursed in a manner that makes its use attractive to providers in comparison to in-person interactions. In order to begin addressing these issues and others, in May 2020, Governor Cuomo appointed members to the Reimagine New York Commission, which is tasked to “focus initially on recommendations to increase opportunity in three essential ways: reducing the digital divide, improving access to healthcare, and creating more and better employment in an increasingly digital economy.” Included in their work product has been a series of recommendations to further codify and modernize telehealth in New York State. Based on these recommendations, Governor Cuomo announced the following comprehensive telehealth reform policies, some of which have since been accomplished in whole or in part:
- Adjust reimbursement incentives to encourage telehealth
- Eliminate outdated regulatory prohibitions on delivery of telehealth
- Remove outdated location requirements
- Address technical unease among both patients and providers through training programs
- Establish other programs to incentivize innovative uses of telehealth
In addition, to further support telehealth initiatives Governor Cuomo announced a guarantee of affordable internet for low-income families. That legislation requires internet providers to offer $15 per month high speed internet plan for low-income households.
The Legislature is also working to address outstanding issues. Pending legislation addresses the amount of reimbursement available for telehealth (both by Medicaid and commercial insurers) and permissible modalities (including asynchronous telemedicine). As more and more providers and entrepreneurs identify more opportunities for the use of telehealth, we can anticipate additional legislative and regulatory measures to authorize such uses.
The full impact of these changes is not yet known. For instance, if the digital divide between rich and poor persists, it is entirely conceivable that increasing use of telehealth will exacerbate existing disparities in access to care. Similarly, the impact of the use of telehealth on professional malpractice and misconduct will need to be monitored on an ongoing basis. But in general, COVID has essentially forced policymakers to act on issues that had remained unaddressed for far too long, and has gone a long way toward helping New York State’s regulatory regime catch up to existing technology in the telehealth space.