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Daniel F. Shay, Esq.: “COVID-19 is not the last infectious disease that we’re going to encounter…. I think that there are good reasons to use telemedicine to the extent that you can reduce the risk to healthcare practitioners, healthcare professionals, and also to other patients, and, frankly, the general populace.”
Practitioners are leaning on telemedicine a lot these days. That makes sense, says Daniel F. Shay, Esq., because healthcare workers have to deal with a coronavirus that’s highly contagious, but that doesn’t necessitate that many of those who catch it need to be treated hands-on. The worst cases need to be hospitalized or at least seen by a physician in person. Many, many others have paid that visit via telemedicine. Shay is a healthcare attorney with the Alice G. Gosfield & Associates law firm in Philadelphia. He recently sat down with Infection Control Today®to discuss how COVID-19 might enhance the place of telemedicine in our lives.
Infection Control Today®: What are some of the things your physician clients have been asking you about during the pandemic?
Daniel F. Shay, Esq.: Well, initially, the first round of questions that we got was about the CARES [U.S. Coronavirus Aid, Relief, and Economic Security] Act that came out and what kind of employee protections were in place? What the nature of unemployment compensation was going to be. We had some employers that we work for who were questioning what’s the best step for them to take with respect to their workers that’s going to protect them the most. We also had some questions about force majeure clauses in contracting. Whether the specific wording of a contract would be enough that you could say, “Well, OK, now we can throw out the contract under the circumstances.” And then the question was, “Does the COVID-19 pandemic and/or a state government issuing a stay-at-home order qualify under the language of that clause?” And finally, we had a number of fairly entrepreneurial clients who were looking to expand their services into other states using telemedicine and then they were asking questions about….
ICT®: When you say entrepreneurial clients, are we talking about physician offices?
Shay: Well, physician offices, but also clients that do remote diagnostic testing, clients that provide other similar services. They wanted to work remotely and work across state lines. So, there were questions about what steps have various states taken to change their licensure requirements. That involves looking at state boards of medicine or departments of health websites and seeing what their stances were as far as obtaining licensure across state lines. Did they relaxed the requirements? Were they just waving people in? That sort of thing. And a lot of that stuff was posted online, but it also involved taking a look at some of the regulations.
ICT®: When you when you say you help some of your physician clients deal with working with other health care professionals, what are you talking about exactly?
Shay: Well, a lot of what we do in terms of coordinating…. Well, actually coordinating is probably the wrong word. I’m not coordinating anything. That’s more the office manager’s job. But figuring out the different ways in which healthcare professionals that are not physicians can be used, and their services reimbursed specifically under state law, usually, and typically under Medicare. And what’s the range of services that they can provide and get paid for? And with respect to Medicare, that kind of breaks down in two different ways. On the one hand, you have Medicare’s reimbursement rules, which is a about what they will actually pay for. But then on the other, you have state licensure laws, which is what legally can a given category of healthcare professional perform under the law. The Social Security Act, specifically with respect to nurse practitioners and physician assistants and there are a couple of other categories, takes the position that nurse practitioners and physician assistants will be reimbursed under Medicare for any service that a physician can perform. They’ll be reimbursed at a lower rate. But as long as they can perform it under state licensure laws, then Medicare will reimburse it. Now, that ends up being a little more complicated when you’re talking about specific services because as I’m sure many of your readers will probably know, the Medicare administrative contractors issue their own policies and may say, for this particular service, we require that a physician perform it and that physician has to be board certified in XYZ specialty. And in those cases, they may say only a physician can do this. Or they may say only a physician who’s board certified, or an NP or a PA who has some kind of national certification in a given specialty, can perform the service and be reimbursed. That doesn’t say anything about what the scope of licensure is, though. That’s a completely separate issue, which is controlled by state law.
ICT®: Will telemedicine help infection preventionists in hospitals or people who run the antimicrobial stewardship programs in hospitals? Are those things kind of hands-on and necessarily so?
Shay: I think to the extent that those types of services do not require physical interaction, there is likely no reason to use telemedicine to the extent that you need to either have a patient there or be physically present with another clinician to discuss findings, show slides, anything along those lines. If you have to be physically in their presence to do it, then obviously telemedicine isn’t going to suffice. But I do think that-and particularly in the wake of COVID-19-we’re going to see less resistance to using telemedicine, I would say. Up until this point, I think there has been a degree of reluctance to use telemedicine mostly due to the uncertainty about what can we actually do. Is it an effective way of performing services or working with other healthcare practitioners? Is it a tool that we want to really rely on? And now, of course, everybody’s being forced to rely upon it. So, we’re also getting reams of data about what works and what doesn’t. And in response to that, I think it’s likely that people will say, “Well, this actually worked pretty well for a bunch of stuff. I mean, obviously, it has its limits. But there’s no reason we shouldn’t keep using this whenever things get back to normal, or some reasonable facsimile of normal.” And also, that those types of services when they are reimbursable by insurance should be paid at the same rate as in-person services. We’re going to find out pretty soon what works and what doesn’t in that respect, to the extent that we don’t already know after … what are we in month two now? I don't know. I’ve kind of lost track of time myself. I think that we’re going to see less reluctance to use telemedicine in a whole range of areas and that can very well include interaction as well.
ICT®: I’ve had the same primary care physician for almost 30 years and tomorrow, for the very first time, I’ll be visiting her via telemedicine.
Shay:All right. My folks have had telemedicine visits and they said it was perfectly fine, basically just a normal visit. Again, for certain types of services, there’s really no need to go into the office assuming you have the capacity to have the visit by telemedicine. I think obviously, with something like an indigent population, that changes. They may not have access to telemedicine in their homes or to stuff that they could use for telemedicine. They might still need to go to a distant site that will have the necessary technology to perform that kind of visit, but at least it can reduce some of the burden and possibly make physician visits faster and also reduce the risk of sitting in a waiting room and catching something else while someone sitting next to you is coughing because you don’t need to be there.
ICT®: I happen to know just from a prior conversation that you’re very closely related to a primary care physician.
Shay: [Laughs]. Yes, my wife is a primary care physician.
ICT®: Is it fair to say that primary care physicians might have more complicated feelings about telemedicine than other specialties?
Shay: I think it depends. I think that as far as the use of telemedicine goes, a lot depends on the nature of the patient population. Do they have access to the technology? Are they willing to use it for that matter? I mean, they may have access but still be reluctant to use it. There’s also the issue about certain types of services, especially stuff relating to primary care simply can’t really be done by telemedicine. Obviously, you can’t perform procedures through telemedicine. You can’t give somebody an injection. You can’t take a swab from somebody. You can’t take a blood sample. But to the extent that you can potentially save time, by having a conversation either on the phone or through video chat with a patient about just general upkeep: Are they continuing with their ongoing regimen? Are they exercising properly? Are they eating right? Do they need a refill on their meds? Any of those types of things? Do they have additional complaints? A lot of that can probably be done by telemedicine. And to the extent that people have more access to it, I think it could really be a benefit for primary care, especially in an environment where volume of services is such an issue for primary care. If telemedicine helps speed up the rate of visits, that’s another reason for primary care to use it more. You know, just to sort of keep your head afloat really.
ICT®: Infection professionists don't really have the reimbursement issues that primary care physicians might have because they’re mostly hands-on. Is it fair to say that they nonetheless have some interest in seeing telemedicine utilized?
Shay: Absolutely. I think for purposes of practitioner safety. I mean, obviously in the midst of a pandemic, that risk is much higher. COVID-19 is not the last infectious disease that we’re going to encounter although, boy, it sure feels like it some days. I think that there are good reasons to use telemedicine to the extent that you can reduce the risk to healthcare practitioners, healthcare professionals, and also to other patients, and, frankly, the general populace. You know, if you’ve got a patient who has to take public transportation to get to the office just to have a follow-up visit, that exposes them to other people on public transit. It exposes the people on public transit to them. It exposes them to the people in the waiting room and vice versa. To the extent that you can minimize those kinds of exposure, there is no reason not to do that. And again, not to reimburse that service at the same rate as you would an office visit. We’re being forced to live with remote medicine right now, in many cases. It’s safer under the circumstances right now. It is probably more efficient in many cases. And I think we’re also getting a lot of data and a real sense for what works and what doesn’t. So, in the wake of all of this, again, whenever things return to some semblance of normalcy, I think that you will see less resistance to using telemedicine and less resistance to reimbursing it at the same rate as in-person visits. Where exactly that all goes, I think we’re going to have to wait and see. But I do think it’s going to change perceptions of does this work? Is it risky? What are the risks involved? Can we feasibly do it? Well, we’re finding out firsthand right now, whether we wanted to or not.
This interview has been edited for clarity and length.