June 1, 2022
When Ross Goldberg, MD, FACS, coauthor of this article, first stepped into the Offices of the Arizona Governor in Phoenix, he noticed an eerie stillness that was unusual for the otherwise typically fast-paced environment. In early 2020, businesses and schools across the country had shut down in response to the COVID-19 pandemic. Consumed by endless updates on the rising number of cases, Dr. Goldberg was well aware of the importance of social distancing and masking in public spaces. Still, with most employees working from home, he sat in an empty waiting room and was reminded of the urgency of embarking on his next professional achievement—improving access to telehealth services for patients throughout Arizona.
At the time, Dr. Goldberg was the president of the Arizona Medical Association and the district medical group vice-chair of the department of surgery for Valleywise Health, Phoenix. He had been called on by Arizona Gov. Doug Ducey to provide his expertise in addressing the regulatory concerns and hurdles in providing telehealth services in the state. Dr. Goldberg’s work as a general surgeon over the past decade and as a Governor of the American College of Surgeons (ACS) led him to this opportunity, and he understood the importance of representing surgeons of all specialties across the state.
Dr. Goldberg walked into the main conference room of the governor’s office, admiring the views of Phoenix outside and took his seat, ready to begin the meeting.
Just 1 year after that first meeting with the governor, Arizona H.B. 2454 was signed into law.1 Arizona was not the only state to prioritize legislation regarding telehealth since the onset of the pandemic. The ACS State Affairs team has been monitoring more than 100 state telehealth bills this legislative season.
States have been governing the practice of telehealth for decades, but healthcare systems and medical providers were slow to adopt the practice before the pandemic. Telehealth services seemingly expanded overnight to help mitigate the spread of COVID-19 and reduce the risk of hospitalization for patients. Telehealth services were being scaled up faster than ever and, in the process, exposed policymakers to the regulatory barriers preventing widespread adoption.
As a result, a stream of state executive orders declaring public health emergencies across the country relaxed telehealth laws, ranging from reimbursement rates and anti-payment parity laws to interstate licensing, insurance coverage, liability issues, and more. Now that many of the executive orders have expired, states are reassessing the value of telehealth as a tool to improve patient access to care. Several states have already taken legislative action to make certain public health emergency provisions permanent, and many more are expected to follow as the use of telehealth continues to rise.
One provision of Arizona H.B. 2454 that became important during the negotiations with the bill’s cosponsors, Reps. Regina Cobb and Joanne Osborne, as well as Governor Ducey, was providing clarification for out-of-state physicians on interstate licensing. Several members of the team drafting the bill were concerned about allowing out-of-state physicians to practice in Arizona.
By engaging in discussions early in the process, Dr. Goldberg was able to provide his expertise and advocate for additional patient safety guidelines, while also protecting in-state physicians’ abilities to practice. Specifically, the legislation certifies that insurance providers cannot use telehealth services to fulfill network adequacy requirements and replace in-person visits. Dr. Goldberg also helped to secure the creation of an oversight committee in the bill to ensure that telehealth services would be monitored and used appropriately.
Signed by Governor Ducey in May 2021, H.B. 2454 allows out-of-state physicians to provide telehealth services to Arizona residents if they register with the state’s applicable healthcare provider regulatory board or agency. Out-of-state physicians are exempt from the registration requirements if they only provide follow-up care related to a procedure that was performed in another state.
No bill is perfect, and as with any negotiation, it was necessary to compromise on some issues. It would have been unrealistic to believe everyone would be happy with all aspects of the legislation, but advocates did their best to ensure that the physician community was well represented and that their main concerns were addressed.
State policymakers are responsible for a breadth of issues, including their state’s economy, environmental concerns, taxes, housing, commerce, education, and more. Many state legislators have backgrounds, education, and even cultural experiences that differ from those of the medical community. Educating them and their staff on the complexities of healthcare systems, surgical care, quality improvement, and the day-to-day responsibilities of caring for patients is critical not just to developing smart policy, but also to preventing the negative consequences of uninformed policy.
Surgeons are unique to the medical profession in that they are trained to be leaders from the first time they step into an operating room. They must be skillful in building relationships, bold in seeking solutions, and confident in their decision-making with patients—all qualities that are perfect for lobbying local representatives and advocating on behalf of the surgical community.
The earlier surgeons start engaging in state policy development, the better the outcome will be for surgeons and their patients. In terms of telehealth, federal legislation will go only so far. Many decisions are made at the state level and at times can supersede federal rules. It’s often been said that “all politics is local,” and this is another example of this truism.
Until the pandemic, telehealth services in surgical specialties primarily were used for postoperative visits, but with many operations postponed or canceled, surgeons needed to rely more on telecommunications to manage the significant decrease in caseloads. According to the ACS Board of Governors Survey published in 2020, 65% of ACS Governors reported lower or much lower volumes than the previous year.2 For nearly 70% of ACS Governors, the pandemic was the first time they used telehealth with their patients, with 75% primarily using it for outpatient care. Most ACS Governors surveyed (87%) believed that telehealth improved access to care.
In addition, the COVID-19 Healthcare Coalition—which comprises organizations representing healthcare, tech companies, academia, and not-for-profits—published results of a survey focused on the use of telehealth services in specialty care.3 Survey participants included 1,594 physicians from six different specialty groups across the US.
During the pandemic, 30% of surgeons and anesthesiologists were scheduling six to 10 telehealth appointments per week. Nearly a quarter were averaging 11 to 20 telehealth appointments, and another 23% were averaging more than 20. Of the survey participants specializing in surgery and anesthesia, 60% agreed or strongly agreed they were motivated to increase their use of telehealth, and 60% agreed or strongly agreed their organization’s leadership was motivated to increase the use of telehealth services in their practice.
In a follow-up survey conducted by the American Medical Association, more than 80% of participants indicated that patients have better access to care as a result of increased use of telehealth services, and 62% felt that patients experienced higher satisfaction.4
The benefits of telehealth to both patients and physicians are significant. Not only does telehealth provide opportunities for patients to receive timely specialty care, but surgeons also can reduce the risk of complications through wider channels of communication that allow them to build greater trust with their patients. Telehealth especially can benefit surgical patients diagnosed with chronic or complex disease, such as cancer, which may require long-term coordinated care.5
Despite the benefits and increase in popularity, the medical community has yet to reach consensus on a single telehealth road map for the future. Troubleshooting negative implications for provider networks has been challenging, and concerns about liability and patient privacy further complicate the issue. Much of the debate centers on whether physicians should be reimbursed at the same rate for a telehealth visit as for an in-person visit. Technically the cost of a single telehealth appointment is considerably less than an in-person visit, but advocates for payment parity are calling for consideration of sunk and overhead costs.
At present, 46 states and the District of Columbia have telehealth laws in place, although they vary drastically from state to state. Using interstate licensing as an example, 17 states offer a special telehealth license, certificate, or waiver for out-of-state physicians to deliver telehealth services, whereas 18 states require physicians to hold a license in the state where the patient is located at the time of treatment. Utah only allows out-of-state physicians to practice without charging a fee, and Rhode Island only allows them to practice if they are employed by the US military, members of an air ambulance team, or staffing a visiting sports team. Six states—Iowa, Montana, New York, North Carolina, Ohio, and Wyoming—fail to specifically address physicians in their telehealth laws but do include other providers such as psychologists, physician assistants, audiologists, dental hygienists, and physical or occupational therapists.6
Decisions pertaining to healthcare policy and delivery of care will be written into law and implemented regardless of whether surgeons play a proactive role in the process. Surgeons who want to participate in shaping telehealth policy should be prepared, open-minded, and willing to compromise in negotiations. Know your talking points and the supporting data. Remember, this is a conversation, not a lecture. Be willing to listen to other points of views. Compromise is not a dirty word, but rather a necessary step in the negotiation process.
When advocating for an issue, you are not just acting on your own behalf, but for your patients and your profession. At times you may need to advocate for issues that do not directly affect you, which is okay, because the more united we are, the more we can help each other with our issues, and the more we can accomplish for our patients.