By Paul Moorehead and Kathleen Hatfield

Law360 (June 11, 2020, 6:04 PM EDT )

Paul Moorehead

Kathleen Hatfield

According to the 2010 census, 5.2 million people identified themselves as American Indian or Alaska Native, up 39% from the 2000 census. Some 33% of native people are under the age of 18; 60% are aged 18 to 64; and 7% are over 65 years of age.

The remaining Indian homelands are mostly geographically remote and often unconnected to major road systems; this is especially so in rural Alaska.

Likewise, important information regarding health care programs and benefits also often fails to reach the intended native beneficiaries. Compounding the situation, many if not most hospitals, clinics and other health care facilities serving native communities are underfunded, poorly staffed and unfamiliar with current and emerging health care technologies.

Taken together, the demographic, geographic and health care challenges facing native people are substantial and well-known. One Government Accountability Office study found that the availability of primary care services — medical, dental and vision — was largely dependent on the extent to which natives living in Indian Health Service areas were able to gain access to those services offered at IHS facilities. The GAO also found that three factors affecting the access to services are (1) waiting times between scheduling and appointments, (2) travel distances to facilities, and (3) a lack of transportation.

Is Telehealth the Answer?

Telehealth — the use of modern telecommunications technology to provide health care services across distance — has come to the forefront of American medicine because of the ravages of COVID-19 and the country's response to the virus, in terms of health care and economics. The sad truth is that native communities have been hit hard by the coronavirus, with some tribes like the Navajo Nation experiencing rates of infection rivaling those of New York City.

The coronavirus has compounded problems the entire American population is facing: aging, increased rates of obesity and diabetes, and other maladies.

By taking advantage of what America does best — developing and deploying technology for the benefit of the people — telehealth makes sense on many levels.

For some time now, the IHS and some tribally operated health care facilities have made real strides in financing and developing the physical infrastructure needed to incorporate telehealth into their treatment regimes.

For example, using telehealth technologies, the IHS offers teleophthalmology, cardiology, vision care and other services. The leading clinical applications in tribally operated programs include teleradiology, telepsychiatry, teledermatology and retinal eye screening.

In 2001, the IHS and Joslin Vision Network launched a joint teleophthalmology program: a photo of the patient's retina is taken and transmitted via the internet to a central facility in Boston or the Phoenix Indian Medical Center to be analyzed for diabetic retinopathy.

Likewise, at Pine Ridge, South Dakota, with a very high cancer mortality rate, the University of Wisconsin relocated its telesynergy imaging system to the Pine Ridge Indian Health Service Hospital. From there, scans for cancer presentations are sent to the Rapid City Regional Hospital for review by a team of oncologists.

In the state of Alaska, since 1994, the Alaska Native Tribal Health Consortium has effectively managed the Alaska Federal Health Care Access Network Telemedicine Project, enabling rural and remote clinics to be networked with larger health care centers and, in the process, make physicians and other specialists from more populated areas available to the remote clinics. The consortium is aided by the U.S. Department of Veterans Affairs, the U.S. Department of Defense, the Coast Guard, the IHS and the Alaska Division of Public Health.

Most recently, the Children's Hospital of Philadelphia joined IHS providers in the Navajo Phoenix and Tucson regions, as well as Nevada and Utah, in developing a pediatric podiatry program for Navajo children.

These examples demonstrate that telehealth has been deployed in parts of the country for decades. Nonetheless, there remain formidable barriers to increased deployment across the country, including the cost of telecommunications infrastructure, hardware and software; access to federal and private funding, and whether federal reimbursement is available; regulatory barriers such as licensing, privacy and confidentiality; and others.

While these barriers are real, recent efforts by Congress to address the COVID-19 crisis have resulted in hundreds of millions of dollars in funding for Indian tribes, tribal organizations and others to participate in this revolutionary pathway to better access health care in native communities.

An Expanded Federal Commitment to Tribal Telehealth

With much of the country under quarantine for a period of months, Congress understood that traditional, in-person methods of receiving health care was not feasible. As a result, Congress passed, and the president signed, a series of coronavirus measures that included significant federal resources to expand the use of telehealth in general and in Indian country specifically.

For example, the Coronavirus Aid, Relief, and Economic Security Act signed into law on March 27 provided $15 million for the U.S. Department of Health and Human Services to support tribes fighting COVID-19 using telehealth and other rural health activities. Within only 62 days of the law's enactment, the HHS announced the entire $15 million would be distributed through the Rural Tribal COVID-19 Response Program administered by the department's Health Resources and Services Administration.

The agency awarded grants to 52 Indian tribes, tribal organizations, urban Indian health organizations and other tribal health providers in 20 states "to implement COVID-19 related activities in their rural communities." Funding decisions were made under a relatively tight timeframe presumably to enable tribal health providers to quickly prepare, prevent and respond to COVID-19. Under the program, tribes could request up to $300,000 in funding.

While that funding was distributed fairly rapidly, deadlines for additional funding to support telehealth remain open or have been extended specifically in response to the ongoing pandemic.

The Federal Communications Commission's COVID-19 telehealth program, also funded as part of the CARES Act, is currently available to reimburse tribal organizations for new investment in telecommunication and information services, as well as for devices to help health care providers deliver connected health care services to patients in their homes in response to the pandemic.

While applications to the FCC are being funded on a first-come, first-served basis, the program to date has funded only slightly over a third of the $200 million that was appropriated for the program by the CARES Act. The FCC's goal is to select applications that target areas hardest hit by COVID-19, where support will have the most impact in addressing health care needs.

Eligible applicants for the program include tribal organizations, not-for-profit hospitals, community and migrant health centers, community mental health centers, rural health clinics, and a consortia of health providers, among others.

The FCC will issue awards for reimbursement up to $1 million each, and the funds will remain available until they are exhausted or the pandemic ends.

Another federal program, the National Tribal Broadband Grant Program in the U.S. Department of the Interior's Office of Indian Energy and Economic Development, seeks to fund proposals for tribes to hire consultants who can perform feasibility studies. The studies will examine the efficacy of deploying or expanding high-speed internet. The broadband can be transmitted, variously, through DSL, cable modem, fiber, wireless, satellite and BPL.

The grants can be utilized primarily to assess existing broadband services and determine the financial cost to enhance and/or expand those services. Eligible applicants include Indian tribes, as defined at Section 5304(e) of U.S. Code Title 25, which include "any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat.688) [43 U.S.C. 1601 et seq.]."

The NTBG grant program intends to award 25 to 30 grants in amounts of $40,000 - $50,000 and is accepting applications through June 15, 2020.

Expanding Emergency Consults Via Telehealth

Another program extended due to COVID-19 is HRSA's Telehealth Network Grant Program, which provides funding in support of tele-emergency services with an emphasis on telestroke, telebehavioral health and tele-emergency medical services.

The program enables telehealth networks to deliver 24-hour emergency department consultation services via telehealth to rural providers who lack emergency care specialists. The program defines a tele-emergency as "an electronic, two-way, audio/visual communication service between a central emergency healthcare center (Tele-emergency hub) and a distant hospital emergency department (ED) (remote ED) designed to provide real-time emergency care consultation."

Applicants eligible for these grants include rural or urban nonprofit entities, including tribal organizations, able to provide direct clinical services through a telehealth network. Both federally recognized Indian tribal governments and tribal organizations are eligible to apply. Services must be provided to rural areas, although the applicant can be located in an urban location. The program intends to make 29 awards in the amount of up to $300,000, per year, over a four-year project period. Applications are due by June 15, and no cost sharing is required by any applicant.

Congress Sweetens the Pot

Like the U.S. Departments of the Interior and Health and Human Services, the U.S. Department of Agriculture similarly extended the deadline by which applications may be submitted to its telehealth grant program: the USDA Distance Learning and Telemedicine Program.

It did so by creating a second window for applications, partly based on the additional $25 million that Congress included in the CARES Act for the DLT Program, which are "to remain available until expended to prevent, prepare for, and respond to coronavirus, domestically or internationally, for telemedicine or distance learning in rural areas."

The new opportunity will provide grants of $50,000 to $1,000,000 per project.

Interestingly, the USDA guidance that explains the requirements for this additional funding notes that, "while the CARES Act requires these funds be used to prevent, prepare for, and respond to coronavirus, the agency believes that all DLT projects already serve that purpose. As a result, while not required, applicants are encouraged to identify specific ways in which their application addresses COVID-19."

The intent of the program is to benefit rural areas with populations of 20,000 or less. Applicants are required to explain how their projects will improve telehealth delivery services in such rural areas. The grants may be used to acquire:

• Broadband transmission facilities;

• Audio, video and interactive video equipment;

• Terminal and data terminal equipment;

• Computer hardware, network components and software;

• Inside wiring and similar infrastructure that further DLT services; and

• Technical assistance that may be needed to operate the equipment.

Eligible applicants must:

• "be legally organized as an incorporated organization, an Indian tribe or tribal organization, as defined in 25 U.S.C. 5304; a state or local unit of government, a consortium; or other legal entity, including a private corporation organized on a for-profit or not-for-profit basis"; and

• "either operate a rural community facility or deliver distance learning or telemedicine services to entities that operate a rural community facility or to residents of rural areas at rates calculated to ensure that the benefit of the financial assistance is passed through to such entities or to residents of rural areas."

USDA's DLT grants carry a 15% cost sharing or matching requirement, and completed applications for the funding must be submitted by July 13.

Concluding Observations

It is clear that the country is entering a new world, with most every aspect of American life likely to be reevaluated. How we work, how we play and how we access medical care are all likely to change because of the coronavirus.

Telehealth is likely to play a much larger role in the years ahead, and Indian tribes should be full participants in this medical revolution.

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Paul Moorehead is a principal and Kathleen Hatfield is counsel at Powers Pyles Sutter and Verville PC.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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