Navigating the Uncertainty of Telehealth

The future of telehealth does, in fact, appear to be murky.

Is telehealth experiencing a post-COVID-19 hangover? That’s how one healthcare executive recently labeled the troubles currently facing the industry. Citing an increasingly pessimistic legal, legislative, and regulatory environment surrounding digital health, the coming months might serve as an inflection point for the industry – and many believe that only the strong will survive.

Recently, the U.S. Drug Enforcement Administration (DEA) released proposed permanent telemedicine rules about the prescription of controlled medications that are a sharp turnaround from pandemic-era freedoms. The DEA stated that the rules would be adding safeguards to situations in which controlled medications might have been overprescribed. As you may recall, the pandemic saw a suspension of the Ryan Haight Online Pharmacy Consumer Protection Act: the federal statute that generally requires at least one in-person consultation before prescribing controlled substances. 

The new proposed rules reinstitute the provisions of the Act for Schedule II medications, while authorizing just one 30-day prescription refill via telehealth for Schedule III, IV, or V medications before an in-person consultation is required. If passed, this rule means that for consumers who began treatment during the pandemic under the suspension and have never seen a provider in person, they suddenly have a maximum of 180 days to find a local provider and be seen.

Telehealth providers and advocates are, to put it simply, not pleased. A senior VP for the American Telemedicine Association stated that this would “sever” the continuity of care for countless Americans. Many have called the rules overly complex and more restrictive than necessary, and a telehealth company CEO stated that the rules were sending patients “back into the dark ages of care delivery.”

The Biden Administration, however, has a different outlook on the proposed rules. U.S. Department of Health and Human Services (HHS) Secretary Xavier Becerra stated that the new proposed rules are far more lenient than pre-pandemic rules, and noted that the rules have exceptions for opioid use disorder treatment medications. The text of the proposed rule itself notes that the impetus behind the Ryan Haight Act itself is still a key public health concern: The Act wanted to combat easy Internet access and a lack of medical supervision (and this hasn’t changed). 

This is coming at a time in which the economic market for digital health is looking unclear. The tech industry in general has been hit with near-constant layoffs, and companies’ digital health teams were often the first to go.

Most recently, Alphabet (the parent company of Google) and Amazon announced that they would end many digital healthcare projects and lay off employees, citing an uncertain economy and restructuring. Silicon Valley Bank, which collapsed just last week, partnered with nearly half of the venture-backed healthcare and tech companies. High interest rates are impacting investment in the field itself overall. 

And as you may recall, several telehealth companies have seen legal trouble for selling consumer information to third-party advertisers. Indeed, just since my last report on the issue, telepsychiatry giant BetterHelp was fined nearly $8 million for the practice, and Cerebral, still under investigation by the U.S. Department of Justice (DOJ), sent out notices to over 3 million consumers that it had disclosed HIPAA-protected personal health information (PHI) to third-party platforms.

All of this news can seem daunting, especially when so many people can agree that telehealth is a vital part of healthcare delivery. But this might be a necessary evil coming out of the relative total freedom of the pandemic era.

As some have pointed out, this new guidance is at least clearing the path forwards and providing a defined shape for the future of telehealth – and public comment may modify this shape before the rules become permanent.

What is clear is that every practice will need to adapt to a new landscape, and hospitals, providers, and consumers alike will have the opportunity to choose what works for them and what companies meet their needs…and what doesn’t.