As a lawyer practicing in the telemedicine space, I am rarely surprised these days. But every once in a while I will read or hear something that stops me in my tracks. That is exactly what happened when I read a blog post by an FTC Commissioner which, among other things, calls for government policies that help facilitate greater adoption of telemedicine. The post was part of a broader piece about the FTC’s role in promoting competition and innovation in health care.
By way of quick background, the Federal Trade Commission is the federal agency charged with protecting consumers and promoting competition, which includes challenging anticompetitive business practices. The agency has been active in the health care sector, challenging several hospital and physician practice mergers. In an effort to highlight some of the FTC’s non-enforcement efforts, one of the agency’s five commissioners, Maureen Ohlhausen, wrote a blog post touting the agency’s advocacy efforts in the health care arena, and specifically highlighted how the FTC’s competition policy could help facilitate greater proliferation of telemedicine.
Among the highlights in the post related to telemedicine:
- Telemedicine can reduce costs and increase access to care, but such advantages often run afoul of state professional licensing schemes that were developed to regulate local medical practices.
- The variation in state licensure and other requirements continues despite “the fact that the core entry requirements for physicians are essentially uniform across the U.S”.
- Legacy statutes and regulations are barriers “to the efficient flow of health care information and expertise and, indeed, specialized labor — barriers that can be costly to public and private payers and, in the end, individual patients,” without necessarily offering better consumer protection benefits.
- Lawyers and policymakers need to creatively address ways to lower barriers without sacrificing the good in state regulations.
- It is critical that policymakers “approach new technologies with a dose of regulatory humility” and should educate themselves about technological innovation, and:
- Understand its effects on consumers and the marketplace;
- Identify benefits and likely harms, and;
- If harms do exist, consider whether existing laws and regulations sufficiently address the issues before assuming that new laws would be required.
Ms. Ohlhausen goes on to call for the FTC to use its policy research and development tools to better understand innovative technology, new business models facilitated by the new technology, and the likely risks and benefits for consumers. More significantly, Ms. Ohlhausen also challenges the agency to educate itself “about undue impediments to innovation and competition” while also using its authority to enforce against harm to consumers from the use of new health information technology vehicles.
I can only applaud Ms. Ohlhausen’s approach. It is encouraging to see a policymaker acknowledge the role regulations may play in stifling innovation and call for government agencies to find creative ways to lower barriers while balancing consumer protection. I only hope other regulators follow Ms. Ohlhausen’s lead.