Evolution or Revolution in Telehealth Regulation

Abstract

A frequently repeated adage, attributed to a wide range of authors and orators, holds that a serious crisis should never be allowed to go to waste. The moment in which we find ourselves renders this adage particularly timely. Responses to one of the defining crises of our age—the COVID–19 pandemic—have mostly been reactive. This includes the responses of multiple actors involved with telehealth. Congress, federal regulators, state legislatures, state regulators, private insurers, and health care providers, confronting the challenges of the pandemic, have responded by making ad hoc adjustments to the regulation and use of telehealth. Moving the conversation beyond this reactive posture, Professor Deborah Farringer’s article, A Telehealth Explosion: Using Lessons from the Pandemic to Shape the Future of Telehealth Regulation, surveys the history of telehealth regulation, the pandemic-era adjustments, and recent proposals for the future finds an opportunity instead. The article seeks to put a crisis to good use—taking “advantage of the momentum that the COVID–19 public health emergency has created”—to inform the creation of “a comprehensive and integrative approach” to telehealth regulation. I find it possible to read A Telehealth Explosion in two ways: as an article with narrow aims and as an article with much broader aims. Parts I and II present these two readings. In Part III, I situate the broader reading within the context of earlier expansions of federal regulation of the health care enterprise to pose the question of how likely it is that the current crisis can be put to the good use that Professor Farringer seeks.