Telehealth Is Here to Stay—In the United States and in Germany

Axel Spies

German attorney-at-law (Rechtsanwalt)

Dr. Axel Spies is a German attorney (Rechtsanwalt) in Washington, DC, and co-publisher of the German journals Multi-Media-Recht (MMR) and Zeitschrift für Datenschutz (ZD).

Before COVID-19, telehealth (a patient seeing and talking to a doctor or other health care provider over the Internet) has long been viewed as an ancillary mode of medical treatment in Germany and the United States. The number of actual virtual “check-ins” has been low. In the past, doctors have used telehealth as mere oversight for low-risk medications and were limited to only a few subspecialties (i.e., dermatology). The medical community/boards have voiced their skepticism of telehealth, raising standard-of-care questions and the doctor-patient relationship in general. They have called for a specific set of rules regarding modalities, and the interaction between patient and health care provider. Germany is now moving ahead with its ambitious plans to finance telemedicine.

Germany Putting Billions for Telemedicine on the Table 

After a lengthy night session, the German Grand Coalition in Berlin agreed on June 3, 2020, on a financial package that provides billions of euros in financial aid to the German industry. “Telemedicine” is one of the key areas. The agreed document states, in particular: “[51] Patient care in hospitals plays an important role in coping with the corona pandemic. For this reason, an innovative and improved investment in hospital equipment is absolutely necessary in Germany. For this reason, a ‘Hospitals of the Future Programme’ is being set up to promote the necessary investments, both in modern emergency capacities (in terms of space and investment) and a better digital infrastructure of the hospitals for better (internal and also cross-sector) care, process organisation, communication, telemedicine, robotics, high-tech medicine and documentation. Furthermore, investments in IT and cyber security in the health care system, which are even more important in crisis situations, and investments in the targeted development and strengthening of regional care structures, both for normal operation and in times of crisis, are to be conceptually coordinated and supported from the programme for the efficient use of resources. .[…] {budgeted: €3 billion}”

In addition, the Grand Coalition plans to boost 5G and 6G fast networks. Germany wants to “play a leading role in the future communication technologies 5G and respectively 6G as a world-leading technology provider and support technological change at an early stage.” Germany will therefore “provide targeted support to innovative companies in the development and testing of new, software-controlled network technologies.” At the same time, Germany wants to “facilitate market entry for such innovative network technologies. {budgeted: €2 billion}”

Germany also wants to “massively accelerate the 5G rollout and build a nationwide 5G network throughout Germany by 2025. The Federal Government’s new mobile communications infrastructure company will be equipped with five billion euros for this purpose. As soon as the mobile network operators have shortly defined the areas in which they will meet their expansion obligations, these funds will make expansion possible in the remaining white spots.”

If these ambitious and expensive plans come to fruition, the new 5G and 6G networks need to be filled with content. “Telehealth” or “Telemedicine” (the overlapping terms used in Germany and the U.S.) are prime candidates. Existing and new (paying) providers and their doctors and patients are needed and expected to contribute significant new traffic.

The U.S. Example: Positive Attitude of Many Patients

The COVID-19 pandemic has immediately changed the negative attitude toward telehealth, although the general sentiment is that much remains to be done. A Sykes 2020 Telehealth Survey from March 19-20, 2020 found out that fewer than 19 percent of the respondents had actually tried out a telehealth appointment—mostly from the age group 25 to 34 years. Only 3 percent responded that they would not try telehealth, whereas 37 percent responded that they have never tried it, but would be prepared to try it out. They welcome that thanks to telehealth they can avoid lengthy waits and trips to and from the doctor’s office that they consider dangerous because of their potential exposure risk to the virus.

There is hence a huge potential for telehealth with a lot of money at stake. To-date, getting a telehealth appointment with the preferred doctor can be bureaucratic. Patients must fill out various forms, sift through instructions, and may not get the time slot they prefer. Another obstacle is that health care in the United States remains to a large degree a state-by-state issue. In response to the COVID-19 pandemic, every state medical board and other professional licensure boards have made significant concessions related to practice modalities of telehealth. They have been flexible related to licensure both on acceptable types of services and cross-state licensing during the pandemic, at least on a temporary basis.  Most state Medicaid programs have expanded telehealth access. Germany, with its established, more centralized health care system, may have some advantages for opening up to telehealth.

Reopening Dilemma

Germany and the United States face the same issue: With the expansion of telehealth, a question remains about what happens when the pandemic is over. Will medicine go back to the pre-COVID world with its face-to face appointments and long waits for doctors? Will the level of telehealth remain the same or will demand drop? Will the medical boards remain flexible and render the gubernatorial emergency declarations on telehealth permanent?

The financial implications for the health care system as a whole are also significant: Nearly every health system is anticipating multi-million-dollar losses this year due to the pandemic. Providers have been crippled with a loss of elective procedures and increased administrative costs. They will not agree to make a system permanent that leads to a loss of income where hospitals need to lay off staff and nurses and reduce office space because doctors talk to the patient directly who may be in another state.  Moreover, not every medical procedure is suitable for telehealth. You cannot pull a bad tooth over the Internet. Therefore, the number of steps for a treatment may increase. In a U.S. Department of Health and Human Services Report from April 2018, the Department warns of typical risks of using the Internet, such as originating site fraud, hacking,  providing non-covered services, e.g., by a non-U.S. doctor that may lower the standard of care that could lead to Medicare fraud. A recent case is United States v. Wilson (D. N.J. 2020), where two telehealth company owners indicted in conspiracy to defraud Medicare received illegal kickbacks in a $56 million scheme for orders of orthotic braces and prescriptions. In another case (United States v Harry, et al (D. N.J. 2019)) an owner and CEO of a telemedicine company pleaded guilty in conspiracy to defraud Medicare and receive illegal kickbacks in exchange for orders of durable medical equipment. The scheme involved more than $800 million in losses. The Department of Justice and U.S. Department of Health and Human Services thus continue to prioritize the investigation and prosecution of health care fraud as new fraud schemes are emerging in light of the COVID-19 pandemic.

Suitable Infrastructure Needed

Telehealth will not work unless the doctor and patient have suitable devices to communicate and their communication is secure and free of interruptions. Only patients and doctors with access to a suitable amount of bandwidth can use it. In this respect, the United States may already be slightly ahead of Germany, although as of today the promised amounts are comparatively lower. The U.S. CARES Act “phase 3” coronavirus response legislative package gives the Federal Communication Commission (FCC) the authority to distribute approximately $200 million through the FCC COVID-19 telehealth fund. In addition, the Rural Utilities Service Broadband Program provides another $125 million in funds for telemedicine.

As of May 28, 2020, the FCC has approved funding for 185 health care providers in 38 states and DC for a total of over $68 million in funding. This means that a large share of the funds have not been allocated yet. The FCC’s reimbursement program is based on invoices and not on a grant program. Public and nonprofit, urban or rural health care providers receive up to $1 million in financial aid. The average award is less than $360,000. However, not every health care provider is eligible as the programs focus on non-profit or public urban or rural providers:

1. post-secondary educational institutions offering health care instruction, teaching hospitals, and medical schools;
2. community health centers or health centers providing health care to migrants;
3. local health departments or agencies;
4. community mental health centers;
5. not-for-profit hospitals;
6. rural health clinics;
7. skilled nursing facilities; and
8. consortia of health care providers consisting of one or more entities falling into the first seven categories.

All eligible services must use broadband Internet access service-enabled technologies to directly serve patients, outside of traditional brick and mortar medical facilities.

Telecommunications services and broadband connectivity services to connect devices and equipment may also eligible for funding. The FCC’s Connected Care Pilot Program that the agency had already contemplated prior to the COVID-19 pandemic provides $100 million in support to fund up to 85 percent of the costs of broadband services and equipment for health care providers. This program focuses on serving low-income and veteran patients. In addition, the already existing Rural Health Care Program under the FCC’s Universal Service initiative subsidizes the difference between urban and rural rates for eligible broadband providers.

In practice, the FCC is focusing on “hard-hit” areas and saw the first batch of applications go to places like New York, New Orleans, and Atlanta. The agency has also waived gift rules in the Rural Health Care and E-Rate programs to make it easier for broadband providers to support telehealth and remote learning efforts during the pandemic. The waiver allows health care providers, schools, and libraries to accept improved capacity, Wi-Fi hotspots, networking gear, or other equipment or services to support doctors and patients, teachers and students, and librarians and patrons during the coronavirus outbreak. Examples of eligible services and connected devices that COVID-19 Telehealth Program applicants may seek funding for include:

• Telecommunications Services and Broadband Connectivity Services: Voice services, for health care providers or their patients.
• Information Services: Internet connectivity services for health care providers or their patients; remote patient monitoring platforms and services; patient reported outcome platforms; store and forward services, such as asynchronous transfer of patient images and data for interpretation by a physician; platforms and services to provide synchronous video consultation.
• Connected Devices/Equipment: Tablets, smart phones, or connected devices to receive connected care services at home (e.g., broadband-enabled blood pressure monitors; pulse oximetry monitors) for patient or health care provider use; or telemedicine kiosks/carts for health care provider sites.

Who Will Enforce the Rules?

There is still a patchwork of state laws on how to regulate and enforce the telehealth rules. On the federal level, the Federal Trade Commission could potentially enforce privacy and HIPAA violations under the FTC Act and the FTC Health Breach Notification Rule, However, state licensure boards and state reimbursement schemes make enforcement across the border difficult. It is still unclear in many cases who is allowed to provide telehealth and what services can be reimbursed. Germany, with its more centralized health care system, will face similar tough questions.

In sum, both countries will realize that public demand does not necessarily equate to permission of a service. The aforementioned survey in the U.S. also indicated that older people (55+) feel more uncomfortable receiving a diagnosis via telehealth than younger patients do. With its aging population, this is also an obstacle in Germany.  But two-thirds of the respondents stated that COVID-19 has increased their willingness to try telehealth out. The main question is therefore whether changing infrastructure, public expectations, and practitioner feedback and response force the hand of governmental authorities. The next months will show in both countries what the permanent implications will be and whether the public will be scared away from telehealth by cases of false medical diagnosis, fraud, or unreliable network connection. Does telehealth meet the standard of care? The most likely outcome is probably a mix of face-to-face visits and virtual meetings with the health care provider. What we should avoid is a system where patients with big pockets are able to obtain face-to face meetings, whereas poorer patients may only see a doctor through a smartphone.