The top antitrust enforcers in the U.S. — the Department of Justice Antitrust Division (“DOJ”) and the Federal Trade Commission (“FTC”) — are tasked with preserving competition in the marketplace, including the market for health care products and services. Competition benefits consumers through lower prices, increased availability of products and services, higher quality, and greater innovation. The DOJ and FTC pursue their competition missions by investigating potentially anticompetitive conduct, reviewing mergers and acquisitions, and advocacy before states and other federal agencies.
Last week, DOJ and FTC commented on the potential competitive effects of telehealth related regulations proposed by Michigan and Delaware. The DOJ commented on a bill working its way through the Michigan legislature that would expand the scope of health care authorized to be provided through telehealth services. The FTC submitted comments on regulations proposed by the Delaware Board of Speech/Language Pathologists, Audiologists and Hearing Aid Dispensers that would permit these service to be provide via telehealth, but would require initial evaluations be done in person.
A bill introduced in the Michigan legislature, SB 753, would broaden the services health care professionals can provide remotely using telecommunications technologies to include not only direct clinical services, but also health education and administration. The bill would also permit health care professionals to obtain consent for treatment via telehealth directly or indirectly, and would permit prescribing drugs through telehealth if the health care provider is authorized to proscribe drugs in person and the prescribed drug is not a controlled substance.
The DOJ supported all three proposals as having “the potential to facilitate more robust use of telehealth services and expand health care competition by limiting or avoiding certain unnecessary barriers.” Specifically, by lowering barriers such as health care access and cost, consumers may be more likely to seek out care sooner and obtain care faster through telehealth. Expanding the services that can be provided via telehealth “may facilitate more diverse and innovative uses of telecommunications technologies to improve health care offerings beyond direct clinical services.” By giving health care providers flexibility in how they obtain consent for treatment, without changing the underlying consent requirement, the bill would “help health professionals compete to improve access and provide health care services to patients.” Finally, authorizing health care providers to prescribe certain drugs would make telehealth a more competitive option versus in-person visits.
Delaware’s Board of Speech/Language Pathologists, Audiologists and Hearing Aid Dispensers proposed changes to their regulations that would allow licensed practitioners to deliver speech/language pathology, audiology, and hearing aid services remotely using telecommunications technologies — “telepractice” under the proposed regulation. The proposed regulations would ensure that telepractice meets the in-person standard of care. However, the initial evaluation could not be done by telepractice.
The FTC generally supported the authorization of telepractice to deliver these services because it would likely “increase[e] competition, consumer choice, and access to care.” Its comments detailed the shortages of speech/language pathology and audiology services in certain parts of Delaware and research showing that these services can be effectively provided via telepractice. The FTC encouraged the Board to reconsider the in-person initial evaluation requirement because it “may restrict entry of qualified telehealth practitioners, potentially decreasing competition, innovation, and health care quality, while increasing price.” Instead, the FTC recommended that the Board allow licensed practitioners to use their professional judgment to determine whether an initial evaluation through telepractice is appropriate, consistent with the in-person standard of care and the patient’s health and safety, just as they can do for subsequent sessions.
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The agencies’ comments reveal a consistent approach to telehealth competition issues at the federal level. Both agencies encouraged the states to reduce regulatory burdens on telehealth so that consumers can enjoy its potential benefits, including reduced health care costs and increased access to health care services. Furthermore, in order to encourage the expansion of telehealth services, the agencies recommended that states narrowly tailor their regulations to directly address the regulation’s legitimate purposes, such as delivering the appropriate level of care and protecting patients’ health and safety.