The expansion of telemedicine has been one of the most important developments during the COVID-19 pandemic. Here, we discuss some of the legal and ethical dimensions of expanding telemedicine services in oncology practices.
As Royce et al discussed in a recent JAMA Oncology article, Congress expanded access to telemedicine services during the COVID-19 pandemic by increasing telemedicine funding for Medicare beneficiaries and changing regulatory requirements to ease the adoption of telemedicine.1 Regulatory changes included Medicare coverage for telemedicine broadly, rather than only when patients are receiving care outside urban areas or in areas with health professional shortages. They also included allowing physicians to take on new patients through telehealth visits, rather than permitting telehealth provision only in the course of the preexisting physician-patient relationship. Congress also allowed a broader set of services to be provided through telemedicine and telehealth, including many oncology consultations and follow-up visits.
Govind Persad, JD, PhD
In addition, agencies waived the requirements of certain privacy regulations, broadening the set of communication platforms that could be used to communicate during a telehealth visit. For instance, during the COVID-19 pandemic, enforcement discretion by the Department of Health and Human Services has allowed health professionals to use video conferencing technology such as Zoom, or even ordinary telephone audio, for patient meetings. It also permitted the remote supervision of various services and allowed resident physicians to be supervised remotely. Finally, it permitted reimbursement for many telemedicine services at the same rate as for in-person services.
Expanding Access to Health Care
The Veterans Administration (VA) health system, another large federal health-care system, has similarly taken various steps both to increase spending and permit access to telehealth services during the COVID-19 pandemic.2 In particular, the VA allows veterans responding to or affected by the pandemic to receive health-care services from the VA system, even if they are not otherwise enrolled in VA care. It also permits the provision of telehealth services for same-day care and has waived veterans’ co-pays for telehealth access during the COVID-19 pandemic.
Because the United States has not one health-care system but a variety of health-care systems, these important changes to federal programs do not apply across the board. Some individual states, however, have taken similar steps as the VA within their own Medicaid programs and with respect to other insurance programs that are regulated at the state, rather than federal, level.3 Some states, such as Colorado, Illinois, and Massachusetts, have restricted the limits that insurers can place on telemedicine access and/or reimbursement. States have also expanded access to telehealth in their Medicaid programs and have relaxed state-level restrictions on provider licensing. The regulatory landscape for telemedicine, however, differs substantially across states, especially in states that have not extended their recognition of a COVID-19 emergency. For example, although the state of Wisconsin initially allowed out-of-state practice privileges that expanded access to telemedicine, the refusal of the state legislature to extend the emergency order also meant the end of the privileges.
“The regulatory landscape for telemedicine differs substantially across states, especially in states that have not extended their recognition of a COVID-19 emergency.”— Govind Persad, JD, PhD
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In addition to states, some private payers have expressed a greater willingness to cover telemedicine services during the pandemic. However, on October 1, two large insurers—Anthem and UnitedHealthcare—announced they are reinstating patient charges that had previously been waived for certain types of telehealth visits.4
Using Technology to Improve Health Equity
Turning from law to ethics, ethical questions have been raised about telemedicine, most importantly, the worry that telemedicine is likely to exacerbate disparities between people who have access to technology and those who do not. Jeremy A. Greene, MD, PhD, MA, Elizabeth Treide and A. McGehee Harvey Chair in the History of Medicine at Johns Hopkins Medicine, offers a compelling vignette describing the challenges he faced treating a patient with COVID-19 symptoms who did not have at-home Internet or smartphone access. Eventually, he explained, he ended up counseling the patient through landline telephone meetings.5
There are important strategies oncology practices can employ to mitigate these concerns and even turn telemedicine into an option that enhances, rather than limits, equity. For instance, oncology practices could prioritize limited in-person appointments for patients who have greater difficulty using technology or who do not have access to Internet connections that would allow for telemedicine. They could also connect patients with resources to expand telemedicine access.
Jeremy A. Greene, MD, PhD, MA
Some federal agencies have provided funding for loaner laptops for telemedicine. Access expansion could be compelling for states and other actors, such as insurers, who stand to gain financially from the wider adoption of telemedicine. For example, states could pay for Internet access and smart
devices for patients who could benefit from telemedicine but lack access, just as some states and localities have paid for Internet access and computing devices for children whose schools have been unable to reopen during the pandemic.
Similarly, although many procedures cannot be performed remotely, telemedicine could indirectly make even these procedures safer by freeing up physical space within health-care facilities. In this way, telemedicine could be one part of a larger harm-reduction effort to provide oncology services in settings that reduce COVID-19 risk. These efforts could also include the use of outdoor spaces for some patient care activities and the prioritization of specific procedures that cannot be provided in lower-risk ways if supplies for personal protective equipment remain limited.
“Using telemedicine to allow enrollment into clinical trials that are distant from patients’ homes…could help increase patient opportunities to participate in clinical trials.”— Govind Persad, JD, PhD
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Increasing Clinical Trial Participation
Another important area of oncology practice where telemedicine has been implemented during the COVID-19 pandemic is participation in clinical trials. Since the pandemic, telemedicine has made it possible to enroll patients in clinical trials that may not be geographically close to their home. It has also made it possible for patients to participate in clinical trials with fewer in-person visits, reducing time and travel burdens.6 Some physicians have suggested allowing this flexibility to continue beyond the COVID-19 pandemic.
Rather than requiring clinical trial participants to travel to a study site, using telemedicine to allow enrollment into clinical trials that are distant from patients’ homes, as well as participation in some clinical trial activities at patients’ local medical centers, could help increase patient opportunities to participate in clinical trials. This could both improve overall enrollment and aid in fair and representative participant selection into clinical studies.
Dr. Persad is Assistant Professor at the University of Denver Sturm College of Law and Greenwall Foundation Faculty Scholar in Bioethics.
DISCLOSURE: Dr. Persad has received grant funding from the Greenwall Foundation.
1. Royce TJ, Sanoff HK, Rewari A: Telemedicine for cancer care in the time of COVID-19. JAMA Oncol. July 16, 2020 (early release online).
2. Congressional Research Service: Delivery of VA Telehealth Services During COVID-19. Available at https://crsreports.congress.gov/product/pdf/if/if11554. Accessed October 7, 2020.
3. Federation of State Medical Boards: U.S. States and Territories Modifying Requirements for Telehealth in Response to COVID-19. Available at https://www.fsmb.org/siteassets/advocacy/pdf/states-waiving-licensure-requirements-for-telehealth-in-response-to-covid-19.pdf. Accessed October 7, 2020.
4. Robbins R, Brodwin E: As insurers move this week to stop waiving telehealth copays, patients may have to pay more for virtual care. STAT, September 29, 2020. Available at https://www.statnews.com/2020/09/29/united-healthcare-anthem-telemedicine-coverage-insurers/. Accessed October 7, 2020.
5. Greene JA: As Telemedicine Surges, Will Community Health Suffer? Boston Review, April 13, 2020. Available at https://bostonreview.net/science-nature/jeremy-greene-telemedicine-surges-will-community-health-suffer. Accessed October 7, 2020.
6. Doherty GJ, Goksu M, de Paula BHR: Rethinking cancer clinical trials for COVID-19 and beyond. Nat Cancer May 29;1-5, 2020.
Editor’s Note: The Law and Ethics in Oncology column is meant to provide general information about legal topics, not legal advice. The law is complex, varying from state to state, and each factual situation is different. Readers are advised to seek advice from their own attorney.
Disclaimer: This commentary represents the views of the author and may not necessarily reflect the views of ASCO or The ASCO Post.