End of Net Neutrality Creates Uncertainty for Rural Telehealth

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By Sara Merken

The repeal of government net neutrality rules could potentially harm rural patients’ ability to speak to a remote physician or electronically send a hospital health information from personal devices.

About 20 percent of Americans live in rural areas “where many do not have easy access to primary care or specialist services,” according to a 2015 American Hospital Association report. With the long-term impact of the Federal Communications Commission’s Dec. 14 decision uncertain, some legal and policy experts told Bloomberg Law that changes to the internet and how access is priced could restrict some rural patients’ access to telehealth services. On Dec. 14, the FCC voted 3-2 to repeal rules barring internet service providers such as Comcast Corp. and AT&T Inc. from slowing or blocking web traffic. The 2015 Obama-era rules reclassified internet access under the Communications Act from an “information service” to a “common carrier service,” moving regulatory jurisdiction of the ISPs solely to the FCC from joint jurisdiction under the FCC and the Federal Trade Commission. Now, the FTC will regain full responsibility.

In a statement, the FCC said its Dec. 14 action was undoing 2015’s “utility-style regulation of broadband Internet access service, which imposed substantial costs on the entire Internet ecosystem.”

The new rules will take effect 60 days after they are published in the Federal Register, which has not yet happened. State attorneys general and activist groups have announced intentions to sue the FCC, advocating for a free and open internet.

The impact of the repeal on rural and elderly patients is unknown because the ISPs can each decide how to implement new practices and payment structures. Rural patients who don’t live close to the doctor or lack sufficient Internet access may face increasing personal costs or difficulty connecting with telehealth services if the price of bandwidth increases, attorneys and health technology professionals contacted by Bloomberg Law said. Small hospitals, health systems, and telehealth companies may also be unable to compete with large companies for high-quality service, they added.

Telehealth services include a variety of functions, such as allowing patients to communicate with physicians from their homes and technology applications that pass real-time and stored health data electronically to physicians.They can include a patient using a video conference to speak with a physician, remote patient monitoring, and mobile health communication. These services have become increasingly popular over the past few years among patients who lack easy access to a physician and elderly patients whose health needs constant monitoring.

About 39 percent of America’s rural population (about 23.4 million people) lack access to advanced telecommunications capability, compared with 4 percent of the urban population, according to the FCC’s most recent broadband report published in January 2016. The agency recently created the Rural Broadband Auctions Task Force to increase mobile coverage in rural areas.

Rural Access

Telehealth is “touted for having its greatest potential for impact” in rural areas, Emily Wein, a health-care attorney in Baker Donelson’s Baltimore office, told Bloomberg Law Dec 19. The net neutrality repeal is concerning due to the unknown risk of reduced access as people in rural areas already experience issues with access to broadband, she said. Wein advises clients on telemedicine regulatory matters.

Telehealth can greatly benefit patients who have difficulty accessing a doctor based on their location or who are living with chronic diseases that would benefit from at-home monitoring. However, these populations can also be financially strapped and if net neutrality in any way imposes additional costs on internet usage, their access to beneficiary telehealth services may decrease, Wein said.

Availability for reimbursement of telehealth services through Medicare is also “not where we want it to be,” and has been widely discussed over the past few years, Wein said. The repeal brings to light that infrastructure challenges are another issue in telehealth that “people need to be aware of beyond reimbursement,” she said.

Direct consultation for patients over the internet, services that provide patients with medical education, and the ability for doctors to evaluate data uploaded from patients’ personal devices like heart rate monitors “could be constricted if they were treated differently than preferred traffic,” Leslie Lenert, chief research information officer at the Medical University of South Carolina, told Bloomberg Law. Lenert is also a member of the Health Information Technology Committee with the Department of Health and Human Services.

About 50 percent of Americans only have one ISP to choose from, so the “idea that you could switch providers to get the performance you needed is not true,” Lenert said. The lack of choice affects less-densely populated areas, which are “just the ones we like to serve with telehealth applications,” he said. Lenert, who is a proponent of reduced regulation, said that the rules under net neutrality also did not go far enough to prefer health data over other internet traffic.

Prioritized Service

ISPs that control the quality of service for different players are the potential big winners of the repeal, and the potential losers are “innovation and the marketplace, because a non-neutral network will favor the bigger players, like Google and Netflix, because they have the money to pay for the bandwidth,” said Mark Gaynor, a professor of health management and policy at Saint Louis University in Missouri.

The result of the changes will depend on how ISPs structure their systems, and if they choose to have business agreements with large companies, Gaynor said. This model of a business agreement, called paid prioritization, could potentially slow down traffic for companies that don’t pay as much as others. Many ISPs say they will not implement a paid prioritization model, but it is difficult to predict what the internet companies will do, he said.

“What is more important, the guy watching a Netflix movie, or the patient that is having a stroke that is waiting for a neurologist to decide the best treatment?” Gaynor said.

The FCC takes a different view on the potential structure, saying the Dec. 14 repeal order “would help the delivery of broadband-enabled health care by reversing the ban on paid prioritization on the Internet,” an FCC spokesperson told Bloomberg Law in an email Dec. 20.

“With Internet-enabled health care apps and services, paid prioritization could be the difference between life and death for patients who require very reliable and fast connectivity for health monitoring, consultation, and service delivery,” the spokesperson said.

A paid prioritization model could potentially affect smaller hospitals’, health systems’, and telehealth companies’ ability to provide telehealth services if they can’t pay a high cost, especially those in rural areas that already have broadband issues, Rene Quashie, telehealth and digital health attorney in Cozen O’Connor’s Washington office, told Bloomberg Law Dec. 18.

The structure could also create a multi-tiered health-care system if the large hospitals that have the money to pay for more bandwidth can only treat wealthier patients who can pay for the higher-quality service, Gaynor said.

Remote monitoring capabilities and digital health services delivered in the home or workplace require “a very high-quality internet connection,” according to Rob McCray, president and chief executive of the Wireless-Life Sciences Alliance, a San Diego-based trade organization for innovative health-care technologies.

Start-ups and smaller companies “are in some cases going to have a degraded product,” like low-quality images, if there is not sufficient bandwidth to support services like a two-way teleconference between a patient and doctor, McCray told Bloomberg Law.

Patients with chronic diseases often utilize remote monitoring technologies, and patients that either don’t have access to a monitoring program or drop out because of the high cost could risk exacerbating conditions if health problems go unchecked, Mei Wa Kwong, interim executive director of the Center for Connected Health Policy, told Bloomberg Law.

Telehealth “could only be available to people with a lot of money who can afford connectivity” in large hospitals and in their homes, though the actual result of the repeal is hard to predict, Kwong said. Her organization is a telehealth policy resource center based in Sacramento, Calif.

Small and rural health clinics are likely to “abandon telehealth because they can’t afford the connection,” she said. For larger companies that can pay the potential higher cost, the ultimate burden will likely fall on the patient or the insurance payer, depending on how the hospital or health system is paid, Kwong said.

Patients receiving services directly in the home could see increased costs because the telehealth programs are delivered over the patients’ internet connection, Kwong said.

Uncertain Impact

Nobody fully understands at this point what will be the ultimate consequences of the repeal and how the ISPs will choose to structure their systems, Quashie said. “That uncertainty in itself is fueling a lot of fear” among telemedicine stakeholders, who are concerned about the possibility of a tiered system that involves higher costs for more bandwidth, he said.

The uncertainty also “compromises planning for the future” for telehealth stakeholders that already provide, or want to implement, a telehealth program, he said. Proactive planning is difficult when future connectivity access is unclear, he said.

Hospitals, health systems and facilities, and telemedicine companies can think about “ways in which this repeal can be mitigated,” though these plans are difficult to construct without understanding the ISPs’ future actions, he said.

Increased partnerships between large and small companies could allow smaller ones to piggy-back on companies with better bandwidth access, he said. Stakeholders could also “advocate with the ISP to protect health-care access in some way to ensure that patient access is not compromised, especially in rural and hard-hit areas which already have broadband issues,” he said.

Stakeholders could also proactively review their Internet practices to “better understand how the rules will apply to them,” Wein said. An audit of a health system or telehealth company’s current connectivity and speed, terms of agreements with carriers, and patients’ use, locations, and plans for continued access can help a company analyze the potential impact of the new rules, she said.

To contact the reporter on this story: Sara Merken in Washington at smerken@bloomberglaw.com

To contact the editor responsible for this story: Brian Broderick at bbroderick@bloomberglaw.com

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