I'm delighted to welcome Andrea Lee who's here with me today to talk about COVID-19 and healthcare. Andrea is a partner in the Honeyman LLP law firm, Brexit and healthcare area with a particular specialty on telemedicine, which we'll talk about in a bit. So welcome to our Zoom recording. Hi. Thank you. I'm happy to be here. So let me ask a big picture question. If you could take a step out, we'll get into some of the issues involving telemedicine and the like. So this crisis comes, of course, enormously in the last few months and state, legislatures, and congress are all gearing up to legislate in various areas and act rules and regulations. Can you give us a sense of how congress and state legislatures are starting to work on healthcare legislation given how suddenly this whole crisis has emerged? Yeah, we're seeing incredible movement, I mean, really unprecedented movement in the healthcare space. Telemedicine in particular, right away, was seen by federal and state legislators as something we had to focus on. I mean, really right when all this started in the beginning of March where there was significant attention to really needing change in the healthcare space to deal with this. Telemedicine was right there, one of the first things mentioned in presidential address, there was an immediate attention to telemedicine can really help us here and it really helps with a lot of the problems that we're seeing in the health care system, whether trying to keep patients at home, reducing use of PPE, being able to provide patients their ordinary care. Right away telemedicine was pinged as something that can help and then across the board, there started to be incredible movement on the federal and state level to try and free up how we can provide telemedicine across state lines, how you can get reimbursed for it. So yeah, we've just seen an incredible amount of movement. So I'm going to make this as a statement but I really mean it as a question. So just to check with you. So telemedicine didn't arise obviously in connection with COVID-19, this had been in emerging movement away, just as you mentioned just now, a way of being able to get physician treatment and health care treatment of individuals without having to come in, particularly important to rural areas where doctors and hospitals are not nearby. So that was underway and obviously in your practice, you work with the various rules and regulations restricting that. Take us through exactly why that movement, telemedicine movement has become suddenly accelerated as a consequence of the coronavirus crisis. Yeah, well, it's interesting, telemedicine has actually been around for a very long time but it's really been strangled through reimbursement restrictions. Under Medicaid reimbursement? Medicare, Medicaid, private insurers have all really limited the use of telemedicine under this idea that if you have easy access to your physician, you're going to overutilize services. So it's going to cost the insurer more money. I think the other argument is, well, if you can get easy access to preventative care, you're actually going to use less health care resources over time. But there's been a significant push to reduce the amount of reimbursement for telemedicine and we started to see that in recent years. We said a little bit, but when this COVID-19 pandemic started, it was just basically everything that was restricting it has been loosened. Now, not consistently across state lines, there's still a lot of complexity trying to figure out the patchwork of different requirements in different states. But yeah, I mean, it's been here, but it's been hard to get patients to adopt it, right when you don't feel well and I'm guilty of this too, the first thing you think of is I'm going to call my physician or I'm going to go to urgent care. You don't think, I'm going to pull out my phone and go to an app. I mean, it was just not part of what we typically do. So it's changing patient behavior to get them to think, oh yeah, I could see a patient very quickly, I don't have to go wait around in a waiting room. So what's interesting about this pandemic is patients now are now forced to use it but finally it's bringing to the front of their mind, "Wow, how helpful this can be," and I'm hopeful that when all of this is over, patients are going to have that experience and hopefully think about telemedicine for their everyday care when we get through this. So to start with basic point again that you've covered before is, those choices about reimbursement alike are mostly decided at the state level, so there's 50 different regimes for how these issues are dealt with? Yeah. So there is a federal requirements if you're covered by Medicare, which is those over 65, that's governed by the federal government, and then if you are covered by Medicaid, so you're an under-privileged individual, that's the state level. If you're a covered by private insurance, that's totally governed by whatever they, well, someone the state regulatory environment, but they get to choose what they cover. So there's a different rule for Aetna, there's a different rule for Humana. So because of that, it becomes complex to figure out not only what will the states do generally, but then what does each individual payer do? So that kind of complexity still exists today because not only is that still happening, but they're all changing and they're changing quickly and they're changing daily. So it's really challenging, I think, for health care professionals, even lawyers that work in the space or work in house, to keep track of all of that. Adding on to it, there's an urgency. We cannot wait around. We have to figure this out now. So it's been interesting to watch that regulatory environment and how that's working to both support telemedicine, but in some ways still continue to prohibit it. So my sense is, while there's enormous amount of change and it's happening very quickly just as you say, there is not a convergence around a one-size fits all solution. Different states are encountering and are actually making adaptations at different rates and in a different scope. If that's correct, what explains some of those differences. Why for example, New York and some other states, as I understand it, have provided very broad waivers from the limitations on reimbursement, while other states, they're much more, I don't know, churlish or restricted in the kind of waivers they provide? Yeah, I don't have a good explanation for why that is. I wish it wasn't that way. I think there's a lot of push from the federal government. I mean, I know there was a letter just released from HHS to each of the states just a couple days ago saying, "Hey, we have to get a uniform approach. This is what we recommend doing." We have some states where they don't see a lot of cases right now, or they're more conservative, are just not implementing the same requirements and even if they are, they all differ a little bit. Like there may be loosened restrictions for positions, but not for nurse practitioners or physicians, but not respiratory therapists which we desperately need for ventilators. I mean, there's all sorts of different ways that they're going about this, and like you said, there's no uniform approach. I hope that when we get through all of this we'll remember how much is inhibited things and let's figure out a uniform approach in the future that in the event there is an emergency, we can enact it and we know these are the services we can provide in different states so we can quickly get people in the right areas. I want to ask about the national and state relations. But before I do that, when we talked about this in the context of reimbursement for services, but there's also the question of who is licensed and gets to practice in one state? So my understanding is those have already also have gone through some significant changes. A doctor in one jurisdiction being able to be licensed to practice in another jurisdiction. Is that become as a result of Covid-19 a significant development? Have we seen a lot of change in that respect? Yes, a ton of change. I mean, that came on the scene right away. We saw these 1135 waivers they're called, which are blanket waivers that allow the federal government to come in and say these rules, we're going to waive these rules. At one of those blanket waivers, they said, ''Well, providers don't have to be licensed in the state where they're providing services,'' which was really exciting. But then if you paid attention, there was actually a footnote that said, ''Oh, well, you still actually have to comply with state law." So it was helpful to signal to the states that we really need to expand licensure. But again, it happened on a little bit here, state here, state there. I mean, I gave this presentation a couple weeks ago and at the time, I think it was 26 states that had enacted some Waiver and now we're up to in the 40s. So there has been significant movement. Again, there's some differences. Like sometimes it applies for physicians, sometimes only as no one else. Sometimes it applies across the board for health care professionals. Sometimes you have to notify the government, sometimes you have to do a short application. It's not as it's super helpful, but there's still some barriers, and there has always been. I mean, this was a big deal for telemedicine for a long time because it prohibited services and it will probably go back this way again. Just like lawyers you can't pick up. I couldn't practice in California. I would have to take the bar exam. I would have to apply. I would have to pay fees. I would have to do my continuing legal education. Exact same thing with medical professionals. It was just nearly impossible to quickly do this. I mean, there were some states that had enacted interstate licensure compact, which are helpful, but they don't happen immediately. I mean, it takes several weeks, if not several months, which is quicker. But that's not helpful right now. We need this done right away. So fortunately, we are seeing a lot of movement in that space and I'm hopeful that as this goes on, we'll see even more streamlined approaches because providers are nervous, I think to do, it's holding some people back. They don't want to, and all the dust settles, have a medical malpractice issue, be brought up before the licensing board. It does prohibit people and they pause before doing things and we don't want that right now. Let me ask you. You mentioned medical malpractice. That's where I want to go next is, especially given how much we don't know about the coronavirus and the fact that some of these treatments are experimental and doctors, physicians are taking some risks. There's been an effort to relax or change some of the medical malpractice laws to incentivize doctors to be able to practice without particularly across state boundaries without attended legal risks. Yes, there has been, and what's interesting is telemedicine historically has not been a concern for medical malpractice issues, because you were typically seeing people had a flu, people had a cold. It was minor things and always if there was something significant, you would say, "Go to the ER, go to the urgent care. You need this test. You need that test." It was very likely that they wouldn't be facing medical malpractice actions, and in fact, the claims were incredibly low when you go and look at the data, because the acuity was very low, and overnight, this has changed. Because now, all of the sudden, you have these patients that may be presenting with only a fever or cough, but if you tell them, "Hey, I don't think you should go the hospital because it's going to increase your risk of catching the virus," and then the individual dies, you've got a real problem there as far as liability protections and real concern because all of the sudden the acuity is way through the roof. So there's concern on the back end of people are probably going to bring lawsuits against physicians, organizations, and how do we protect against that? So there is some medical malpractice. Companies are waiving some of this, and saying, "Well, if you practice outside of state lines, we'll still cover you." But it's all over the place. There is not a uniform approach. So most of the time, physicians just have to contact their insurers and say, "Hey, this is what I plan to do. Can I do this? Will you cover me?" There's some movement there, but it just really depends upon the company. In a hurry, because this is unfolding so fast. Now want to come back just briefly to the uniformity issue. Vice President Pence made a statement I think in one of the White House briefings couple weeks ago that seem to suggest we're going to national, I need to use these exact terminology, but we're going to impose a national solution. We really need a comprehensive national solution to deal with these health issues. Was that just idle rhetoric or do you see the national government really stepping in and maybe taking over the whole practice of telemedicine to, as a result of COVID-19, but not just limited to this particular crisis? I don't know. I think right now, I don't see that happening right away. I think the state still want to have some control over the telemedicine practice in their individual states. I think that would be incredibly helpful. That's what we need. I hope they go that way. I haven't seen anything to suggest that that's happening yet. But again, this is changing rapidly. If you watch this presentation a week from now, two weeks from now, that may be the case. I hope that's the case. But yeah, I haven't seen it yet, but we desperately need it. We desperately need them to help streamline this, because like I said, providers are hesitant. We want them to not be. We want them to be able to go to wherever they're needed, whether that's in New York or another state that's having a high percentage of these cases, we absolutely need that. If we don't get that, it's going to be a very dire situation. You think that this is the intersection of law and health care, maybe more on the healthcare side. Do you think given the risks that nurses and other folks in the healthcare community really encountering, that you read about these heartbreaking stories of becoming ill and not having adequate PPE and all that, we're going to see an exodus away from, below the physician level, folks who are providing healthcare. So even after the crisis is over, we're going to face a real shortage or such as rank speculation. Yeah, potentially. I know we're already seeing some action around people coming together and making complaints to state government agencies that they are getting sick because they don't have PPE. It's likely that afterwards they're going to sue employers and say, "You were negligent. You did not protect us. You put us in a situation where we were going to get ill if we didn't." So I think there's real attention to that from hospitals and health care providers of, yeah, not only is this a problem on the patient perspective, but our employees, we have to take efforts to protect them, and that's happening not just in hospitals or health care settings. That's happening in factories where individuals still need to work, all the essential healthcare businesses, where they're being exposed, and you could see why that's very upsetting for them, and that's something needs to be done. So yeah, after the dust settles, I think it'll be interesting. I think there will be that group of people that are so inspired. I think I'm one of those people that thinks, oh my gosh, wow, I mean, how much of a calling would it be, to be someone on the front lines right now. But yeah, it's an incredible risk that these people are taking absolutely. Andrea, thank you so much. There's so many interesting issues, and as you say, this presentation will probably be different a week from now or a month from now, but really appreciate your insights. Yeah, thank you. Thank you for having me.
