Market Insight

The “New” Digital Healthcare Delivery System: How COVID-19 is Upending the Status Quo and Navigating a Dated Regulatory Paradigm

McDermott Will & Emery
September 6, 2021

Although digital health solutions have long been a key area of strategic growth for the healthcare industry, the COVID-19 crisis accelerated what it means to deliver safe, effective, digitally-based care. As the United States shifts focus from short-term crisis response to longer term solutions, what does a digitally-driven healthcare industry look like, and how can healthcare entities maintain the highest standards of care and meet patient expectations, while constructively disrupting out-of-date practice patterns?

Before the world plunged into the COVID-19 pandemic, the healthcare industry long embraced digital health and data-driven technology solutions as key areas of strategic growth. And while obstacles remain to the broader adoption of digital health in the care delivery continuum, COVID-19 made innovation and the acceleration of tech-enabled care a necessity. 

Almost overnight, the U.S. became dependent on virtual care, with swift (but in many cases, temporary) changes in regulations driving increased adoption and improved care access. With telehealth usage approximately 38 times higher than pre-COVID-19 levels -- ranging from 13% to 17% of visits across all specialties, according to new data from McKinsey -- there have been numerous calls for longer-term or permanent changes to regulations to facilitate telehealth use. 

As the country moves beyond crisis response to digital sustainability, a key question arises: How can the healthcare industry maintain the highest standards of care and meet patient expectations, while constructively disrupting out-of-date practices and regulatory limitations? During the recent TechGC virtual dinner, The Evolution of Digital Health Technologies, McDermott Will & Emery Partners, Michael W. Ryan, and Jennifer S. Geetter, discussed these questions and more. 

An updated healthcare ecosystem for digitally-enabled care

With an accelerated digital foundation in place and legislation proposed to support continued use and adoption, what might a post-COVID digital healthcare delivery system look like? Over the next few years, the healthcare industry can expect to see: 

  • Continued efforts to expand reimbursement for virtual care models. The healthcare industry can expect to see proposals that would expand and extend access to reimbursement for digital health services, including models for synchronous and asynchronous care.
  • A more complete, cohesive care landscape: Providers and payors will continue to focus on the development of value-based models powered by continuous, holistic care management programs.  The deployment of such arrangements will be made possible by the deployment of tools, technologies and support systems for better engaged, more empowered patients.
  • Real-time advice, interventions and personalized support: This includes the identification of gaps in care and patients failing to comply with provider recommendations, based in-part on improved interoperability and data sharing mandates, in combination with better data analytics capabilities.    

This continued shift to digital care delivery offers many benefits to many stakeholder groups. For providers, patients and payors, virtually- and digitally-enabled care paths can be a welcome source of support and powerful tool to deliver better, more proactive chronic condition prevention and management. Digital care can also be a key contributor to better consumer health engagement, with patients increasingly able to access care on their terms, in a way that is convenient and preferable to them. 

Effective integration of digital health and virtual care delivery 

As digital healthcare delivery continues to be woven into the care continuum, there are a few critical factors that healthcare entities must consider to ensure patient engagement and buy-in post-pandemic, including: 

  • Building trust and establishing a seamless experience. Patients need to see healthcare providers’ use of digital channels, including virtual care, as more than just an app or a piece of technology. Digital tools and channels must act as an integrated and seamless part of the care experience, working in concert with providers. Providers must clearly communicate and instill confidence in how patient data is being used, whether for research, product improvement and other innovations, while maintaining compliance with data privacy and security laws as well as patient preferences. Providers must also balance adherence and engagement expectations with potential patient concerns about being overly scrutinized or surveilled.
  • Providing transparency and clear communication about data use, privacy, and security. The current data ecosystem is fractured. But as data sharing and analytics capabilities continue to improve, patients must be made aware of how their data is being used, in what capacity, and to what end, with options to opt-out or -in, depending on patient choice. 

Reinforcing responsible use of patient data, including secondary data and research rights. Healthcare entities must adhere to existing regulations and human subject safety norms to ensure the appropriate deidentification of data, mining of identifiable health information, screening and recruitment of subjects, and other research activities. 

Ultimately, digital health is both the present and the future of care delivery. As always, however, the devil is in the details — and the timing. For providers, payors, legislators and digital health solutions developers alike, it’s critical to maximize the value of their tools and technologies while maintaining compliance and patient trust amidst an in-flux, post-pandemic regulatory environment.

McDermott Will & Emery
McDermott Will & Emery is an international law firm with a diversified business practice. The firm is one of the largest grossing law firms in the US and globally, and its lawyers represent a wide range of commercial, industrial and financial enterprises, both publicly and privately held.

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