What will the telehealth landscape look like under the Donald J. Trump Administration?

The Trump Administration is likely to drive telehealth advancement in a positive direction. For example, President Trump’s plan to reform the Veteran’s Affairs Department includes improved patient care through the use of telehealth technology. There are also some indications that the newly confirmed Secretary of the Department of Health and Human Services (“HHS”), Tom Price, is “telehealth friendly.” Recently, during the congressional confirmation hearings, Price mentioned a tele-stroke program in Georgia as a model of success, and he said he thought there were many things that can be done to mirror that kind of technological expansion. Price also said he is interested in promoting telehealth because it “holds great promise, particularly for rural areas experiencing physician shortages and for patients with limited mobility.” Moreover, Trump’s pick to be the next Administrator of the Centers for Medicare and Medicaid Services (“CMS”), Seema Verma, said in her recent congressional confirmation hearings that she wants to work with Congress to promote the use of telehealth technology. Specifically, she said, “telehealth can provide innovative means of making healthcare more flexible and patient-centric. Innovation within the telehealth space could help to expand access within rural and underserved areas.” Finally, Maureen Ohlhausen, the recently appointed acting chair of the Federal Trade Commission (“FTC”), has in the past spoken favorably regarding the potential of telehealth and has said that the current professional licensure system needs to be rethought given telehealth technology’s potential.

Despite the current focus in Congress on repealing and replacing the Affordable Care Act, telehealth legislation continues to gain traction and bipartisan support on the Hill. In February, a bipartisan group of 37 Senators sent a letter to Tom Price encouraging HHS to support telehealth and remote patient monitoring. Congress also has embraced telehealth advancement with a consistent stream of proposed legislation seeking to enhance the provision of telehealth services. Most recently, Rep. Joyce Beatty (OH-03) and Rep. Morgan Griffith (VA-09) reintroduced the Furthering Access to Stroke Telemedicine (“FAST”) Act that would expand access to stroke telemedicine (also called “telestroke”) treatment in Medicare. Congress also recently introduced HR 766 which would establish a pilot program to expand telehealth options under the Medicare program for individuals living in public housing. Additionally, Congress is poised to consider at least two bipartisan pieces of legislation focused on telehealth. The first is known as the Creating High-Quality Results and Outcomes Necessary to Improve Chronic (“CHRONIC”) Care Act of 2016, which seeks to modernize Medicare payment policies focused on improving the management and treatment of chronic diseases using telehealth technologies. The second is known as the Creating Opportunities Now for Necessary and Effective Care Technologies (“CONNECT”) for Health Act, which seeks to mandate Medicare reimbursement for telehealth services (beyond the current, limited reimbursement framework). Finally, Senator Orrin Hatch (R-UT), the Chairperson of the Senate Finance Committee, recently released his “innovation agenda for the 115th Congress” which encourages the promotion of the “internet of things,” greater broadband investment, and increased device-to-device communication and cross-border data flows.

Even if telehealth advancement stalls at the federal level due to the ensuing repeal and replace battle, the “two for one” Executive Order limitations, and/or the White House Chief of Staff Memorandum regulatory freeze, states will continue to promote payment parity, expand access to telehealth services under Medicaid, and provide new guidance and clarification regarding state-issued telehealth statutes, regulations, policies, and other guidance. In 2016, state legislatures introduced over 150 telehealth-related bills, and nearly one third of these bills ultimately became law. There is little doubt this trend will continue in 2017. The consensus among 57 of the 70 state medical and osteopathic boards in the U.S. surveyed in 2016 is that telehealth is currently the most important health care regulatory topic they face.

An equally important regulatory development in states is the private insurance marketplace and the introduction of parity legislation. In the early part of 2017, Oklahoma (SB 716/HB 1580), Washington (SB 5457), Kansas (HB 2206), Utah (HB 154) and New York (AB 1421/SB 834) all introduced telehealth payment parity legislation. Currently, 31[1] states have these parity laws in place. Some states also introduced bills to expand telehealth coverage by private payers or their Medicaid programs. For example, Indiana (HB 1337/SB 444), New York (AB 1421/SB 3293), Vermont (HB 118/SB 50), and Washington (HB 1713/SB 5355/SB 5436). Other states, such as Kansas (HB 2254), Arkansas (SB 146) and Texas (SB 1107/Read more here), are introducing bills to clarify the appropriate standard of care required in order to establish a physician-patient relationship through a telehealth encounter. State Boards of Medicine and Pharmacy also will continue to play an active role in telehealth advancement at the state level. For example, North Dakota’s Medical Board met on January 29 to discuss new telehealth regulations.