Q&A with Eric Fish, Chief Legal Officer for the Federation of State Medical Boards

In February 2022, the Regulated Professions and Health Care practice groups at Robinson Bradshaw published “Giving House Calls a New Meaning: The Expansion of Telemedicine in the Age of COVID-19.” As a follow-up to the article, we recently sat down with Eric Fish, chief legal officer for the Federation of State Medical Boards, to discuss the development of telemedicine over the course of the pandemic and the future of digital health and regulation. The FSMB represents state medical boards and assists in the regulation of physicians. Fish and the FSMB have been closely monitoring the emergence of telemedicine and the regulatory response to its growth.

Q: Access to telemedicine greatly expanded during the pandemic because of emergency declarations. What impact do you believe telemedicine has had on the health care industry?

A: Although telemedicine was being used by a small subset of practitioners prior to the pandemic, the attention it received in the general public was often from non-physicians — medical futurists, investors and consumers who sought out convenient treatment. The pandemic created a situation where, almost overnight, the entire system had to use, adopt and experiment with telemedicine to ensure that care could be provided. As a result, many physicians had to be rapidly trained on how to properly utilize telemedicine in a manner that met the needs of the patient, but did not sacrifice the normal standards of care. There was a steep learning curve, but once understood, many practitioners found it to be a beneficial tool to manage patient care. In fact, some practitioners now use telemedicine exclusively for non-emergency and minor cases because of its efficiency. It has improved clinical management and allows practitioners to spend more time on complex cases, and patients seem responsive to this shift in care delivery. Telemedicine is now accepted and understood in a way that many would not have thought possible two years ago.

From the FSMB’s perspective, greater adoption of telemedicine achieved goals such as increased access to care. However, it was important that as its use grew, the FSMB’s primary purpose, ensuring patient safety, was not compromised. Early on, the FSMB became aware that some bad actors were trying to take advantage of the emergency orders and licensure waivers in a manner that was not focused on patient care, but on pecuniary interests. Just as in other previous natural disasters, individuals who were disciplined, or previously had their license revoked, attempted to use the emergency situation to begin practicing medicine again. In response, the FSMB leveraged its services to support state medical boards, federal agencies and health facilities to ensure that those providing care, in-person or through a telemedicine platform, were properly qualified and vetted to do so.

Q: What about on the regulatory side?

A: On the regulatory side, I would describe the first few weeks of the pandemic as chaotic. Messaging from policymakers and the rules and guidance ultimately being issued were sometimes in conflict, so it was a daunting time for lawyers trying to navigate the changes and provide advice. As the first weeks of the pandemic unfolded, there was not a wide understanding of the interrelated nature of state and federal rules and laws governing telemedicine or regulatory authority in a declared emergency. One thing I am proud of is that many practitioners I worked with during this time were willing to go beyond personal and professional interests, stay connected and support each other so that key principles remained at the forefront of any discussion.

Moving forward, there is a need to revisit the collective experience and chart a better approach to understand the rapidly changing utilization and regulation of telehealth, the complex relationship of state and federal Executive and Emergency Orders, the impact of health inequities that the pandemic has underscored, and the challenges of delivering care in a crisis. There is also a need to improve coordination of regulatory data sharing. The pandemic helped create the acceptance that telemedicine really is not something wholly different from traditional medicine and solidified an understanding that it is a modality to practice medicine, when appropriate. However, it is important to make sure the rules are refined in a way that puts patient protection first.

The lessons over the last two years influenced the new FSMB policy for the appropriate use of telemedicine technologies in the practice of medicine that was just adopted at the FSMB 2022 annual meeting. This replaces the 2014 policy and provides improved guidance for the use of telemedicine technologies in the practice of medicine, while raising awareness for licensees and patients alike as to the appropriate standards of care for telemedicine encounters. This new policy eases modality restrictions, addresses the issue of continuity of care, and explicitly addresses questions of equity in the telemedicine context.

Q: What role do you see for telemedicine going forward, as emergency declarations subside and in-person interaction returns to more of a pre-COVID level?

A: It is unlikely that the patient and practitioner demand for and use of telemedicine takes a step back in a post-COVID world. The pandemic brought the opportunity for people to experience telemedicine and understand that it is not scary or something entirely different. Patients prefer telemedicine largely because of the convenience, and this is something practitioners and regulators can build from to achieve other regulatory goals, such as access to high-quality care. The bigger question for future utilization will be whether or not payment parity continues, or reverts back to pre-pandemic rules.

Q: What results did you see from licensure waiver over the course of the COVID-19 pandemic? Were there any negative consequences?

A: There was a big issue with continuity of care at the beginning of the pandemic. For instance, college-age individuals may have had a relationship with a campus physician, but then they had to go home to a different state. The licensing rules that were in place, interpreted strictly, would have prevented an ongoing relationship between the student and the campus physician. I think all involved would view this as a suboptimal result.

Regarding negative consequences, the FSMB saw bad actors, such as physicians who had licenses revoked for causing patient harm or those who had not completed necessary training, attempting to use the waivers to re-enter the workforce and directly treat patients. In order to protect patients and prevent further harm, the FSMB worked with state medical boards to provide and coordinate information through its Physician Data Center. When waivers were being issued and physicians were traveling to states, in-person or virtually, the FSMB was able to get the necessary records to state boards electronically to properly identify and credential physicians and prevent bad actors from treating patients.

Q: What do you see as some of the biggest barriers to the expansion of telemedicine? There has been discussion around: the lack of a multistate licensure system, increased risk to patient data and privacy, and insurance/reimbursement issues.

A: Licensure has been used as a strawman for the expansion of telemedicine for quite some time. The FSMB is committed to a licensure process that evolves as society’s needs evolve. The Interstate Medical Licensure Compact is helping with that evolution, and FSMB is working with the Compact to create data flows that help expedite license processing times. Some states are crafting their own approach to licensure waivers, and there may be some regional agreements or certification. A variety of approaches to address licensure may continue to develop, but what is common is an understanding that improvements to the ways physician data moves across regulatory agencies is essential no matter what pathway a state implements.

Personally, I believe the biggest barrier will be ensuring that the people and businesses that rush into telemedicine do so with integrity. As people see the potential of telemedicine and are entering the space for the first time, they will need to understand the regulator’s perspective and incorporate that perspective into their products, business models and growth strategies. With any evolving market, there will be people who do it for the wrong reasons and it is those people who will impede true progress. It is the industry’s responsibility to make sure the benefits are realized without sacrificing patient safety, and balance this with their professional ethics and overarching goals of the industry. As Brad Smith, general counsel of Microsoft, has said on numerous occasions, it is good for innovators and technology companies to collaborate with regulators, and not see the future of technological innovation in industry as an “us versus them” battle. Ultimately, it is good for both the industry and patients, if the tension between innovator and regulator can be minimized. This does not mean that there is not room for differences of opinion, but with principled thinking and an understanding of each other, true progress is possible.

Q: Participation in the Compact has increased substantially over the course of the COVID-19 pandemic. What kind of impact, if any, do you foresee the Compact having on telemedicine going forward? Do you think participation will continue to increase, or subside, as COVID-19 restrictions are reduced? Do you believe the Compact has had the impact you hoped it would regarding license portability?

A: At this point, there are 35 states in the Compact, and that is a great achievement. Participation will continue to increase, not necessarily related to COVID, but because the Compact has proven itself capable of meeting the needs of physicians and regulators. As of April 1, nearly 22,000 applications have been processed and more than 32,000 licenses have been issued through the Compact process.

There continues to be a growing emphasis on the dynamics of the health care marketplace including the importance and convenience of mobility of physicians and developing models of interstate health systems. For instance, a health system may provide care in neighboring states, and that system’s physicians would need to be licensed in both states in order to provide services, in-person or through telemedicine, to the entire patient base. Innovative approaches like the Compact offer solutions for states to consider in support of greater regional health. And if data sharing can be improved, it could facilitate almost seamless licensure processes without fundamental changes to how medicine is regulated. Data flow and privacy issues are key going forward – once data flows are trusted and infrastructure of data flow is put in place, the Compact can become a great vehicle, and licensure can be improved.

Q: In your 2014 article, “State Licensure Regulations Evolve to Meet the Demands of Modern Medical Practice,” you noted “the federal government has become more interested in considering national licensure standards with the intent of removing regulatory impediments perceived to hamper those physicians desiring to practice across state lines.” Has the pandemic renewed these efforts, and if so, what is the status?

A: Before the Compact, there was a big push at the federal level to nationalize licensure. The appropriate role of state regulators seemed to be an afterthought for many in the conversation. But once the Compact became a reality and the promise of interstate cooperation realized, the calls for full nationalization seemed to lessen. And about that time, the FSMB started working with federal agencies to get the right data flows in place to support the connectivity of federal and state regulators. The FSMB has put in place agreements with the Department of Veterans Affairs and other agencies to make sure physicians in federal systems or programs are verified and that state medical boards are aware if a physician in that system becomes disciplined. Historically, there have been instances where disciplined doctors have entered practice in a VA hospital despite the fact that a state had suspended or revoked their license. A recent report by the Office of the Inspector General for the Department of Veterans Affairs highlights suboptimal data sharing with state medical boards and the need to improve vetting of physicians entering the VA workforce. There are also instances where physicians with suspended or revoked licenses were writing prescriptions and filling out workers’ compensation and disability claims, often times in support of billing fraud, which could be prevented with greater cooperation between state and federal agencies. The FSMB has been successful over the past 10 years in fostering partnerships between federal and state regulators and recognizes partnerships are going to be critical to the strength of the health care regulatory system going forward. There needs to be greater cooperation and dialogue between state and federal regulators and achieving this will demonstrate to critics that with the right amount of effort there can be a national solution to issues of licensure without the need to create a federal licensure system.

Q: One major public health benefit of telemedicine is that it has the potential to expand health care access to groups that have historically faced challenges in receiving treatment. But one potential issue with telemedicine is that these same groups, such as older adults, minorities and rural communities, are also less likely to have the technology and broadband necessary to utilize telemedicine. How do you foresee removing barriers so that telemedicine can be used to increase access to health care for those groups?

A: This is a difficult question – most of the barriers are fiscal, technical, and based on broadband access and familiarity with technology: essentially outside the domain of FSMB. But, I believe that improvements to infrastructure and education can lead to these technologies being used in a way that does not disadvantage those groups. FSMB will continue to do its part to bring awareness to socioeconomic and equity issues and help address those issues where appropriate, but there are other players that need to do their part to help.

Q: Prior to the COVID-19 pandemic, many cited the lack of awareness of telemedicine as a barrier to its expansion. A 2019 article by fiercehealthcare.com stated that only 10% of consumers used telemedicine in lieu of in-person visits. A 2017 study found that “despite evidence of effectiveness, there is a high rate of telehealth refusal among patients.” Do you believe the COVID-19 pandemic has increased awareness of telemedicine so that it is now an accepted form of treatment? Do you see telemedicine ever reaching a point where it becomes the most popular form of initial medical examinations/evaluations (where medically appropriate)?

A: The pandemic forced everyone to pivot and become more familiar with approaches to doing things that have always been there but were not fully appreciated. This probably occurred tenfold in health care. Because humans are creatures of habit, in-person visits are the reference point for a vast majority of people. And there are still going to be those who prefer in-person meetings with physicians, but both patients and practitioners will see telemedicine as a tool when appropriate. Telemedicine may never fully replace the humanistic components of health care, but it will address some of the issues that have frustrated the system in prior days such as scheduling, integrated follow-up care and greater accessibility to the right physician for the acute issue. And I believe that is a win for all involved.

The Robinson Bradshaw Health Care and Regulated Professions practice groups would like to thank Eric Fish for the opportunity to discuss and share his insight into the development, growth and future of telemedicine. Robinson Bradshaw is staying abreast of the developments and issues that Fish discussed and is advising our clients in the telemedicine industry.