How to unlock telemedicine on such a large scale

The rapid spread of coronavirus is quickly filling hospital beds and consuming the time and attention of medical professionals. And even as health officials issue warnings to stay home, many people must travel to get medical care and guidance. 

Because of steps were taken on Tuesday by the Department of Health and Human Services, telemedicine will now be able to help by freeing up capacity in the health-care system and by allowing people to remain at home. 

Telemedicine allows patients to access information about treatments for themselves or loved ones, talk to medical professionals about potential exposure, and receive emotional support when they feel lonely and isolated. 

Why have we not yet realized the promise of telemedicine? To date, outdated regulation has stood in the way.

The barrier has been the Health Insurance Portability and Accountability Act (HIPAA). Passed in 1996, HIPAA aimed to provide patients with stronger privacy protections. But it was passed in the early days of the internet — and before the explosive growth of mobile phones, video calling, and real-time messaging — and quickly became outdated. Many of today’s most common communication tools are not HIPAA-compliant, which means that people weren’t able to use the most easily-accessible apps and services to get the care they need.  

HHS announced Tuesday a “notice of enforcement discretion” for health care professionals who use popular online communication apps and services that aren’t compliant with HIPAA. The notice means that doctors can use FaceTime, Google Hangouts, Skype, and Facebook Messenger video chat to provide care instructions to patients, assess symptoms, and advise on potential exposure risk. And at a time when depression will likely rise due to social isolation, mental health therapists can move their practices online and continue seeing their patients. 

As the owner of an in-home health care business and as the director of an academic center focused on science and technology policy, we believe that this is a good first step, but we encourage policymakers to use this short-term HHS experiment as a trial for broader reform. If the results of this experiment are positive, then Congress should take steps to permanently legalize telemedicine at scale.

The new HHS policy will mean that during this crisis, we won’t be forcing us to choose between providing care and limiting virus exposure for our care professionals. Our Nurse Supervisors will be able to use a widely-used video-chat service to do their required quarterly visits for clients, and our speech-language pathologists will be able to provide virtual therapy sessions for the children they serve through widely used video chat platforms. 

But without action from Congress, the telemedicine carriage will turn into a HIPAA pumpkin once the public emergency ends. In the wake of the crisis, lawmakers should use the lessons learned about telemedicine during this experimental period as the basis for comprehensive HIPAA reform. 

That approach is consistent with how policymakers in other countries have approached other types of innovative policy issues, like fintech and data sharing. The HHS Notice essentially creates a “regulatory sandbox,” which is a trial of a regulatory regime for a limited period of time. The sandbox concept enables policymakers to test a new model and gather data on what works and what doesn’t before implementing wholesale, permanent reform.

For instance, one concern about telemedicine is that it will lead to unforeseen privacy and security problems. The notice “encourages” providers to notify patients about potential privacy risks, and where possible, to use privacy and security features like encryption. But we still don’t know exactly what risks might emerge or how prevalent they will be, and we don’t have a good set of best practices for how providers should limit risks. 

To gather data that will help to inform future HIPAA reform, HHS should appoint a committee of academics and researchers to study the costs and benefits of telemedicine during the crisis. And companies should work closely with HHS to deploy additional security and privacy tools where appropriate and to share aggregated, anonymized data about how people are using their tools during the crisis.

If we carefully study the costs and the benefits, the end result of HHS’s experimental approach to telemedicine is that we’ll understand more about how communication technologies improve health care, and we’ll have better information about the right regulatory models to enable them safely in the future.

Ari Medoff is the CEO of Arosa+LivHOME, which is a provider of in-home care and pediatric therapy services. Matt Perault is the director of the Center on Science & Technology Policy at Duke University and an associate professor of the practice at Duke’s Sanford School of Public Policy.