Telehealth for Healthy Competition

As providers look for more convenient and cost-effective means to reach patients, there has been much discussion about the potential benefits of telehealth services. Such services also are healthy from an antitrust perspective. Against a backdrop of regular advocacy in favor of lowering barriers to the provision of healthcare services, both the Federal Trade Commission (FTC) and the Department of Justice (DOJ) have recently released comments on proposed telehealth regulations in Michigan and Delaware.

Michigan

On November 29, in response to requests from Michigan lawmakers to provide an opinion on the potential competitive impact of Michigan Senate Bill 753 (H-1), the DOJ released a statement describing how the Bill has the potential to enhance competition and promote greater use of telehealth services for the benefit of patients and consumers.

Michigan law already permits the provision of telemedicine services by licensed or authorized healthcare professionals. The Bill loosens restrictions in several ways:

• Broadening the scope of services to which the law applies to “telehealth,” which includes not only direct clinical services, but also the use of electronic information and telecommunication technologies to support or promote long-distance clinical healthcare, patient and professional health-related education, public health, or health administration;
• Loosening consent regulations by permitting a health professional to directly or indirectly obtain consent required from patients for treatment provided through telehealth; and
• Allowing health professionals to prescribe drugs through telehealth if they are authorized to prescribe drugs in person and so long as the prescribed drug is not a controlled substance.

The DOJ observed that the Bill appropriately appeared to balance consumer safety and welfare with competitive benefits. In particular, the DOJ noted that making telehealth services more available will improve the convenience and affordability of healthcare, potentially encouraging patients to seek out care sooner or obtain care faster and saving patients unnecessary in-person visits.

Delaware

Also on November 29, in response to a request for public comments from the Delaware Board of Speech/Language Pathologists, Audiologists and Hearing Aid Dispensers, the FTC submitted comments on a proposed regulation to allow telepractice in those fields. In this case, the FTC identified areas in which the proposed regulation may be unduly restrictive and encouraged the Board to consider changes.

The Board proposes to eliminate an existing regulation that does not allow licensed speech/language pathologists, audiologists and hearing aid dispensers to evaluate or treat clients solely by “correspondence,” which includes telecommunication. The proposed regulation permits “the application of telecommunications technology to the delivery of speech/language pathology, audiology and hearing aid dispensing professional services at a distance,” but imposes certain requirements. In particular, the Board proposes that all initial evaluations must be performed face to face, and not through telepractice.

The FTC is predictably enthusiastic about the relaxation of prohibitions on telepractice, noting that the proposed regulation likely would encourage the delivery of speech/language and audiology services by telepractice, thereby increasing competition, consumer choice, and access to care. The FTC raises the concern, however, that the proposed limitation of telepractice to “interventions and consultations” and requiring all initial evaluations to be performed in person effectively prohibits some telepractice diagnostic services and may discourage practitioners and consumers from using telepractice for post-evaluation treatment or intervention. The FTC cites with approval laws, regulations and policies in 16 states and the District of Columbia that do not require in-person initial evaluation or contact, as well as telehealth regulations in several other specialties. The FTC recommends that the Board consider avoiding a blanket restriction on initial evaluations by allowing licensed practitioners to make the determination as to whether telepractice is appropriate for an initial evaluation.

Conclusion

Both the FTC and DOJ have endorsed the introduction of innovative, competing models for delivering and promoting healthcare, such as telehealth, as having the potential to improve access to care, contain costs, and encourage more ways to deliver needed care. The agencies appropriately focus on identifying and reducing or eliminating barriers and regulatory burdens that may stand in the way of such developments, asking regulators to consider the benefits of competition and adopt a flexible approach to restrictions that are aimed to address health and safety concerns.