RemoteICU, a Florida-based company that connects intensivists living overseas with U.S. hospitals via telemedicine, has sued the U.S. Department of Health and Human Services over the agency's telehealth restrictions.

Despite HHS instituting waivers making tele-ICU services payable under Medicare, RICU says it has been unable to expand its services to more hospitals – because the agency disallows payment for critical-care telemedicine if the physician is located outside the United States.

"That's a fundamental misunderstanding of what telehealth is," said Jesse Panuccio, partner at Boies Schiller Flexner and counsel for RemoteICU, in an interview with Healthcare IT News.   

"HHS's regulatory thinking needs to catch up to technology," he added. "Unfortunately, they seem to be stuck in a 1960s view of medicine."  

HHS did not respond to requests for comment on the lawsuit.  

WHY IT MATTERS  

According to Panuccio, RICU works with dozens of U.S.-licensed, board-certified intensivists who were trained in the United States and have practice experience there.  

Although the physicians live abroad, they serve as full-time, permanent staff members of the hospitals where they care for patients.  

This allows them, says Panuccio, to both fill in healthcare shortage gaps and to cover night shifts during their daytime hours.  

Panuccio and RICU argue that the company's services could be crucial, especially during the pandemic.  

"There are patients dying in the hospital every day of COVID-19, and every day we see more reports saying we need more ICU doctors," Panuccio said.  

RemoteICU initially filed its lawsuit in February of this year in U.S. district court for the District of Columbia.   

According to court documents, RICU had contacted HHS and Centers for Medicare and Medicaid Services officials after the agencies relaxed telehealth regulations under COVID-19. After months of back and forth, the agency concluded that Medicare could not reimburse RICU's client hospitals for its services.   

The district court granted HHS' motion to dismiss the suit, saying it lacked the subject matter jurisdiction to hear the claims.  

Earlier this month, RICU appealed and filed a motion for expedited consideration, saying again that the pandemic made the situation more urgent.  

"The United States has long had a shortage of critical-care doctors, that the pandemic has greatly exacerbated this shortage, and that more and better ICU care saves lives, especially during the current COVID-19 pandemic," said RICU in court documents.  

"Thus, the entitlement to a preliminary injunction in this case is a matter of urgency and public significance, warranting expedited consideration," it continued.  

Panuccio told Healthcare IT News that in his view the physician's location doesn't make a difference to the patients when it comes to remote care. "Let's say you have a patient in a small town in Louisiana whose doctor is sitting in a remote office in New Orleans, delivering care," he said. "From the patient perspective, if the doctor is sitting in Tel Aviv, there's no difference from the doctor in New Orleans.  

"It ought to be about the quality of care," he said.  

THE LARGER TREND

Although relaxed telehealth restrictions opened the virtual care floodgates during COVID-19, enduring murkiness around the future of such rules has provoked concern among stakeholders.

Panuccio noted, for his part, that congressional lawmakers seem interested in telehealth, although they have yet to take action in terms of permanent policy.    

"I would think this would be a very fruitful area for legislators to get engaged in," he said.  

ON THE RECORD  

"RICU brings this action to compel HHS to comply with the law," said RemoteICU officials in the initial lawsuit.   

"But this case is about more than that," they added. "It is a matter of life and death for the many COVID-19 patients – Medicare patients, often in the age group most vulnerable to COVID-19 – who so desperately need the critical care that RICU can provide hospitals if HHS fulfills its vital obligation to pay for these services."

Kat Jercich is senior editor of Healthcare IT News.
Twitter: @kjercich
Email: kjercich@himss.org
Healthcare IT News is a HIMSS Media publication.