Tower of Babel? Virtual Care Legislative Challenges

January 31, 2018

Tower of Babel? Virtual Care Legislative Challenges

Last week, Mobihealthnews published a piece providing one perspective on the legislative barriers for telemedicine. We were interested to see where the discussion would go, particularly considering Zipnosis’ significant role in supporting – and even drafting – inclusive legislation targeted at making online care delivery more accessible to health systems, providers, and patients. Our interest was rewarded with a piece that offered few solutions and much blame. That said, this piece did get some things right – albeit obliquely.

The Boogeymen of Telemedicine Legislation?

The Tower of Babel concept is a long-standing challenge in online care delivery. The language we use (telemedicine, telehealth, mhealth, virtual care – the list goes on) isn’t unified, and yet, somehow we manage to have valuable, informed conversations about the technology, direction of the industry, and value to providers and patients. More concerning than our lack of unified language, is the defining of “telemedicine” in legislation – an outcome more of general misunderstanding than lack of specific language.

The Congressional Budget Office (CBO) was also targeted as “having a hard time coming up with a number that says what’s going to happen when we allow technology to help healthcare delivery.” While strictly speaking accurate, this statement is more than a little misleading. The CBO’s purpose is to provide Congress with objective, impartial information about budgetary and economic issues. Its role includes supporting the finance, budget, and ways and means committees, as well as producing  formal cost estimate for nearly every bill approved in committee. You’ll note that none of that includes forecasting a hypothetical economic impact for “ technology to help healthcare delivery.”

In fact, when called into action to score the CHRONIC Act, the CBO noted that the legislation, including the telemedicine provisions, would “reduce direct spending for the Medicare and Medicaid programs by $217 million over 2018-2022.” With the CONNECT Act, another piece of federal legislation that expands the reach of telemedicine, in the Finance Committee, we can likely look forward to further CBO scores related to online care delivery in the not-too-distant future.

Real Regulatory Challenges & Real Solutions

Just because we don’t see the items cited as the major challenges facing telemedicine legislation doesn’t mean there aren’t legislative barriers. For the past ten (or so) years, we’ve been diligently working with state boards of medicine, state legislatures, members of the U.S. House and Senate, and – really – anyone with clout to overcome the challenges in the regulatory landscape.

Regulatory Fragmentation

Zipnosis has  been talking about regulatory fragmentation for years, and it will remain a challenge in the regulatory landscape for the foreseeable future. Between state and federal legislatures, boards of medicine, health departments and other governing bodies, there are just too many cooks in the kitchen for anything short of complexity. Rules and regulations differ from state to state, and even sometimes within different agencies in the same state.

That said, strong legislation at the federal level or improved rules and policies from the Centers for Medicare and Medicaid could help provide guidance for states, catalyzing some uniformity to regulation of online care. Barring this, it’s vital for virtual care and telemedicine companies, health systems, and even individual providers, to speak with regulators at all levels to educate them on the benefits of online care and help craft a unified strategy for regulating and reimbursing telemedicine.

Telemedicine Definition

Here is really where the “Tower of Babel” makes itself felt. Often, the legal definition of “telemedicine” ends up focusing on technology and modalities, rather than the standard of care. This creates challenges for health systems, providers, and regulators, as the rapidly changing nature of technology means legislation is often out-of-date as soon as the ink is dry.

Rather than focus on the mode of care delivery, regulations that address telemedicine and virtual care need to focus on upholding the standard of care. This not only creates opportunities for innovation, but future-proofs regulations, helping them remain relevant regardless of where technology takes care delivery.


We aren’t going to go heavily in-depth here because Fabric just published an in-depth piece about how regulation and reimbursement are impacting the adoption of virtual care. That said, there is a distinct tendency in regulation to focus heavily on patient reimbursement, leaving providers struggling to get paid for care delivered online.

Reimbursement also falls prey to the modality trap, with state Medicaid and Medicare policies focusing less on the standard of care and more on the technology by which care is delivered. According to the Center for Connected Health Policy, 48 states provide some form of Medicaid reimbursement for video-based telemedicine, while only 21 reimburse for remote patient monitoring and 15 for store-and-forward.

Here, too, movement has occurred at the federal level, through legislation like the CHRONIC and CONNECT Acts, both of which contain language expanding online care access and reimbursement for Medicare and Medicaid.

Continuity of Care

The final area where regulation has an opportunity to make appreciable, positive impact is through policy that supports continuity of care. Telemedicine is often looked at as a culprit in the fragmentation of care delivery, but it doesn’t have to be that way. In the current landscape, direct-to-consumer telemedicine service providers – companies who provide clinical services via telemedicine, not to be confused with technology companies who facilitate care delivery – are adding to fragmentation challenges by shifting care away from local caregivers. This is compounded by insurers and employers contracting directly with these companies, which  adds to an already fragmented healthcare landscape, pushing employees and/or plan members to use clinicians with no relationship to or connection with their local healthcare resources – all in the name of cutting costs.

In some states, this has led to increased resistance to telemedicine as a whole, but that’s not the answer. Instead, we should craft telemedicine policy to  encourage continuity of care and pursue regulatory policy that defines telemedicine as a tool that many, if not most, clinicians will eventually come to use, rather than a “service” or a specialty. By doing so, we can eliminate barriers to telemedicine and other technology-facilitated health care and provide patients and their clinicians new ways to connect, that support rather than circumvent the patient-clinician relationship.

Reason for Optimism

This response isn’t intended to be a smack-down. Rather, we truly want to open the dialogue in the telemedicine and virtual care space around what will help drive positive movement on the regulatory front. And we think there’s reason for an optimistic outlook for telemedicine regulation in 2018.

First, as we’ve mentioned before, there is great work being done at the federal level by Sen. Brian Schatz and others on the CONNECT Act. 2017 also saw a lot of movement toward more inclusive, forward-looking telemedicine legislation at the state level, exemplified by the well-publicized example of the new telemedicine regulations in Texas. We anticipate that this trend will continue into 2018, as boards of medicine and state legislatures, fuelled by greater knowledge and understanding of the benefits virtual care can bring to their states, work to make care more accessible, and address the challenges of today’s healthcare landscape.


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