Category: reason

After years of unfulfilled predictions about high-tech health care, the use of telehealth—like telecommuting—boomed during the pandemic and lockdowns. While the delivery of medical services via phone call, videoconference, and other electronic communications isn’t universally appropriate, it’s often helpful, and a huge boon for people who have limited mobility or live far from medical providers.

But while the COVID-19 pandemic has driven the use of telehealth technologies, that’s largely because of the emergency suspension of regulatory barriers. Once the crisis is over, telehealth could disappear as an option for many people if regulators move to reclaim the ground they temporarily ceded.

I’ll say up front that, as a rural dweller who lives far from most specialty providers, I’m a big fan of telehealth. In recent months, I’ve had the preliminaries of a skin cancer diagnosis done through emailed photos and a videoconference with a dermatologist 100 miles away. My son’s acne was similarly treated by a distant doctor. The proliferation of phones with built-in cameras, video tools, and secure online portals for sharing files and lab results makes much of this a breeze.

Not everything can be done remotely, of course. I did have to make an in-person trip for a biopsy, and another to have the offending cells sliced away. But my son has yet to meet his dermatologist in-person. We’ve avoided multiple long drives and opportunities for catching COVID-19 or other diseases.

My wife is on the other side of this phenomenon in her role as a pediatrician. She meets with patients and their families through videoconference calls as a tactic for reducing the chance of infection.

We haven’t been alone in embracing remote medical visits. Department of Health and Human Services (HHS) data shows that “nearly half of Medicare primary care visits were provided via telehealth in April, compared with less than one percent before the [public health emergency] in February.”

Even after lockdowns eased, many medical appointments continued through phones and computers. “As in-person visits started to resume from mid-April thru May, the use of telehealth in primary care declined somewhat but appears to have leveled off at a persistent and significant level by the beginning of June,” HHS adds.

Telehealth services were so rare before this year partially because of discomfort among providers with providing services to people who aren’t physically present. It’s new, it’s different, and it’s not always appropriate to diagnose and treat patients without in-person visits.

But even if physicians and other providers were less resistant, they still would have been stymied by regulatory barriers that hobbled the use of telehealth. Until March of 2020, seeing a patient remotely meant navigating a maze of privacy rules, licensing restrictions, and the very real likelihood that the visit was an act of uncompensated charity.

“Beginning on March 6, 2020, Medicare—administered by the Centers for Medicare & Medicaid Services (CMS)—will temporarily pay clinicians to provide telehealth services for beneficiaries residing across the entire country,” CMS announced earlier this year. “Prior to this announcement, Medicare was only allowed to pay clinicians for telehealth services such as routine visits in certain circumstances. For example, the beneficiary receiving the services must live in a rural area and travel to a local medical facility to get telehealth services from a doctor in a remote location. In addition, the beneficiary would generally not be allowed to receive telehealth services in their home.”

Medicare isn’t the only game in town when it comes to paying for care, but Medicaid follows much the same rules, and, sad to say, private insurers tend to stick closely to the government program’s policies.

Payment restrictions, while a huge concern, weren’t the only regulatory barrier to the use of telehealth. A list of pandemic-inspired HHS policy changes regarding telehealth assures providers that “the federal government has taken concrete steps to make telehealth services easier to implement and access during this national emergency.”

Under the revised rules, providers can now treat patients across state lines—something not permitted in the past. They can also see new patients online and not just continue existing relationships.

Importantly, given the minefield of privacy rules in the Health Insurance Portability and Accountability Act (HIPAA), providers can meet with patients using common “non-public facing” tools including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, Zoom, and Skype. That means patients don’t have to install and master the use of specialized software to see the doctor.

Also important: “A practitioner can prescribe a controlled substance to a patient using telemedicine, even if the patient isn’t at a hospital or clinic registered with the DEA.”

But, as helpful as all that is, don’t get too comfortable. “These changes are temporary measures during the COVID-19 Public Health Emergency and are subject to revision,” warns the document.

Also temporary is the relaxation of state rules—medical licensing, in particular—that stand in the way of telemedicine. Traditional licensing makes it illegal to hold a videoconference appointment across a state border, although driving across that border to see the same doctor in person is perfectly acceptable.

“The removal of state licensure restrictions allowed physicians to practice across state lines, which played a major role in allowing telehealth to step in as a national ‘load balancer’ of medical services,” points out Roy Schoenberg, a physician and head of Amwell, a telehealth company. “For the first time in history, the nation could beam in specialists from where they were available to where they were needed most.”

If old-fashioned licensing requirements are reinstated, that will leave patients and providers alike stuck in little boxes of medical care defined by their state borders, even though they have the ability to easily speak and share information with anybody on the planet.

Then again, if old payment, HIPAA, and prescription restriction are put back in place, it won’t matter what size boxes we’re stuck in, since telehealth will go back to being a rarity. That uncertainty hangs like a cloud over the whole practice of remote medicine.

“Multiple physicians mentioned that the lack of certainty regarding the post-pandemic policy environment reduced their willingness to invest in telehealth over the long term,” writes Lori Uscher-Pines, a RAND Corporation senior policy researcher. “By signaling their intentions sooner rather than later regarding payment policy, policymakers could reduce uncertainty and encourage investment in sustainable telehealth models. For example, Congress should act to permanently remove geographic and originating site requirements for telehealth in Medicare.”

To his credit, President Donald Trump ordered in early August that some telehealth rule revisions be extended. But the effect is largely limited to rural areas. And what can be done by executive order can be undone the same way.

It’s great that regulators backed off a bit on telehealth-hobbling red tape that proved to be life-threatening during a pandemic. But if those rules are potentially deadly during a crisis, they’ll still be inconvenient and dangerous once life returns to something like normal. If they care at all about health, politicians and bureaucrats need to get out of the way—permanently.

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Presidential nominee Joe Biden gave his acceptance speech from the Democratic National Convention last night.

Since what he had to say wasn’t particularly libertarian, we fixed it.

Photo by Gage Skidmore.

Produced by Paul Detrick.

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Voters in Oregon will have the chance to approve an ambitious criminal justice reform agenda this year. The Drug Addiction Treatment and Recovery Act, or Measure 110, would reclassify low-level possession of illegal substances from a misdemeanor to a violation, prompting either a $100 dollar fine or a health assessment.

Drug trafficking would still be considered a felony, while substantial possession would be reduced to a misdemeanor. The measure would also expand rehabilitation services and open 24-hour Addiction Recovery Centers. 

According to a report released by the Oregon Criminal Justice Commission, the proposed reclassifications could lead to 1,800 fewer Oregonians being convicted of felony possession of a controlled substance each year, a drop of about 95 percent from the current conviction rate. 

The report notes that Measure 110 would particularly benefit racial minorities, as racial disparities in both arrests and convictions would “fall substantially.” For instance, arrests of blacks, who are disproportionately affected by the drug war, would fall 93.7 percent. It would fall 82.9 percent for Asians, 86.5 for Hispanics, 94.2 for Native Americans, and 91.1 for whites.

The report adds that “inequities [may] exist in police stops, jail bookings, bail, pretrial detention, or other areas” but there is not “sufficient or appropriate data to examine those stages.”

Measure 110’s addiction programs would cost $57 million annually, to be funded entirely through excess taxes collected on cannabis sales, which are expected to net $182.4 million from 2021 to 2023. Anthony Johnson, one of the chief petitioners of the Yes for 110 Campaign, predicts that as tax revenues increase and the state realizes the savings incurred by decriminalization, even more funds can be reallocated to treatment and rehabilitation.

The campaign has primarily been organized online, leaning on supporters to get the word out. “There’s no playbook for how to campaign in a pandemic,” Johnson says. Nonetheless, he thinks it has “a really good chance of winning” this fall. “Our communications with voters all across the state shows that voters understand that the status quo is not working. We’re clearly not going to arrest our way out of addiction.”

The measure has been endorsed by many prominent individuals and organizations, ranging from the Oregon branch of the American Civil Liberties Union to several county district attorneys.

Oregon has long been at the cutting edge of drug reform efforts. The state legalized recreational cannabis in a 2014 ballot measure, and a 2017 law slashed some penalties for possession of small quantities of cocaine, LSD, and other illegal substances. Oregon voters will also have a chance this November to approve medicinal use of psilocybin at licensed treatment centers.

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Postmaster General Louis DeJoy attempted on Friday to depoliticize recent policy changes that have slowed mail service and to calm worries that the post office will be unable to process an expected surge in absentee ballots amid the COVID-19 pandemic.

In testimony to the Senate Homeland Security Committee, DeJoy promised that mailed ballots would be given priority in advance of November’s general election. But he also stressed the dire financial straits facing the U.S. Postal Service—circumstances that have been worsened by the pandemic and that will necessitate changes if the post office is to remain functional.

“As we head into the election season, I want to assure this committee and the American public that the Postal Service is fully capable and committed to delivering the nation’s election mail securely and on-time,” DeJoy told the committee. He voiced support for voting by mail—saying that he intends to vote by mail himself—and promised that “the Postal Service will deliver every ballot.”

The post office has found itself at the center of controversy after reports of delivery delays and disconnected mail-sorting machines. Democrats have accused DeJoy, who became postmaster general in June after a successful career as head of a private-sector logistics firm, of implementing those changes in order to interfere with the election. Most states have expanded the availability in mail-in voting this year in response to the coronavirus pandemic and in hopes of preventing crowding at polling places.

Both sides have been blowing the issue out of proportion. President Donald Trump has alleged that the more widespread use of mail-in voting is ripe for fraud, but there is no evidence to support that claim; Trump himself has voted by mail as recently as March of this year. Democrats, meanwhile, believe DeJoy is engaged in a nefarious plot to disenfranchise Americans, even though the expected uptick in mail volume around the election would fall well within the post office’s usual capabilities.

It’s good to see that DeJoy is trying to lower the temperature surrounding this debate. He told the committee on Friday that more “dramatic changes” to mail service will be postponed until after the election.

That makes sense. But make no mistake about it: Dramatic changes are necessary. The post office, DeJoy said, is facing the prospect of a $9 billion shortfall this year alone—a huge total for an agency that is supposed to be self-sustaining.

If members of Congress are surprised to learn that the post office needs serious reforms, they haven’t been paying attention. The Government Accountability Office warned in May that the post office’s business model is “not financially sustainable” after it lost $78 billion since 2007.

Pension costs are driving those losses. At the end of 2019, the postal pension fund had $50 billion in unfunded liabilities—that’s the long-term gap between what the fund expects to pay out to current and future beneficiaries and the amount of revenue the fund is expected to collect from workers’ paychecks and investment earnings. The fund that covers health care expenses for retired postal workers is facing a $69 billion unfunded liability.

But the post office can’t do anything about those pension costs without congressional approval, DeJoy reminded the committee on Friday. Indeed, the post office has been asking Congress for years to approve changes to help stanch the bleeding, including reducing delivery days, closing locations that have few customers, and repealing collective bargaining. If members of Congress aren’t going to support wholesale changes to how the Portal Service does business, they shouldn’t be surprised when DeJoy tries to save money in the few ways available to him.

The good news is that the post office’s longterm troubles are mostly disconnected from partisan electoral politics, and that the Portal Service should be capable of handling mail-in ballots in November. The bad news is that, once the election is over, not many people are likely to keep caring care about the very real problems that do exist within America’s mail system.

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Tucson handyman Kevin McBride was hard at work one Friday last May when his girlfriend offered to get him a cold drink from a convenience store. She took his Jeep, his sole means of transportation and the basis of his livelihood. Then the cops took his Jeep, and local prosecutors are now demanding a $1,900 ransom before he can get it back.

This sort of shakedown would be clearly felonious if ordinary criminals attempted it. But as McBride discovered, it is legal under Arizona’s civil asset forfeiture law. The cops said McBride’s girlfriend had used his Jeep to sell a small amount of marijuana to an undercover officer for $25. Although the charges against her were dropped, the Jeep is still being held as a party to that alleged offense, and McBride has to pay for the privilege of getting his property back.

“They’re extorting money from me,” McBride says, “and I didn’t do anything. I don’t know how they can do that. You know, we don’t live in a free country anymore, because that’s not freedom.”

Ordinarily, someone in McBride’s position would be inclined to give in, since challenging the forfeiture would cost thousands of dollars in legal fees, and there would be no guarantee of winning. But the Goldwater Institute is representing McBride pro bono, arguing that Arizona’s system of legalized theft violates the Fifth Amendment’s guarantee of due process and the Eighth Amendment’s ban on excessive fines.

When he began to wonder what was keeping his girlfriend, McBride hitched a ride to the convenience store, where he was dismayed to find police loading his Jeep onto a flatbed truck. When he asked the cops what was going on, he was handed a phone number to call for an explanation. He tried the number for three weeks before someone answered, which is when he found out that his Jeep had been seized because of the alleged marijuana sale.

Under civil forfeiture law, neither the fact that McBride was not accused of a crime nor the fact that the charges against his girlfriend were dropped made any difference. Officially, the Jeep itself is accused of participating in criminal activity. If McBride could scrape together the money for a lawyer to challenge the forfeiture, the government would have to show by “clear and convincing evidence” that the Jeep was involved in a penny-ante marijuana sale.

That is actually an improvement on the standard that applied before Arizona amended its forfeiture law in 2017, when “a preponderance of the evidence” (any probability greater than 50 percent) was enough. But the current standard is still a much lighter burden than proof beyond a reasonable doubt, the rule that applies in criminal cases. And unlike criminal defendants, innocent owners like McBride have no right to court-appointed counsel, which makes it much easier to pressure them into “mitigation” agreements like the one proposed by the Pima County Attorney’s Office.

“An outright return of the vehicle is inappropriate in this case,” Deputy County Attorney Kevin Krejci asserted in an August 11 letter to McBride. Instead, “the state offers the following mitigation of forfeiture,” Krejci wrote, saying the Jeep “would be released from forfeiture for $1,900.00.” But “if we cannot agree on this mitigation, then the state will proceed with a Declaration of Forfeiture.” Since Arizona assigns 100 percent of forfeiture proceeds to the law enforcement agencies responsible for the seizure, this proposal is tantamount to demanding a bribe for the return of stolen property.

Arizona, like the federal government, allows owners of seized property to argue that they should get it back because they were unaware that it was being used for illegal purposes. But then the burden is on them to show they “did not know and could not reasonably have known” about that illegal use. In other words, property owners like McBride are presumed guilty unless they can prove otherwise. So much for due process.

The Goldwater Institute also argues that the forfeiture of McBride’s Jeep violates the Excessive Fines Clause, which the U.S. Supreme Court last year ruled applies to civil forfeiture cases. McBride says his Jeep is worth about $15,000, or 600 times the value of the marijuana that his girlfriend was accused of selling.

“If the forfeiture of a $15,000 Jeep over $25 worth of marijuana is not excessive,” says Goldwater Institute senior attorney Matt Miller, “then it is difficult to imagine what would be.” The government presumably will argue that the $15,000 loss is perfectly reasonable given Arizona’s draconian penalties for selling small amounts of marijuana, which include up to two years in jail and a maximum fine of $150,000 for amounts less than two pounds.

“In Arizona, as in most states, someone does not need to be convicted of a crime before their property can be forfeited,” Miller notes. “Even though forfeiture was meant to be used to target the property of major criminals—like drug kingpins—it is predominantly used against the little guy, even when he has done nothing wrong.”

In this case, the little guy is taking a stand against the government’s extortion. “Kevin has joined with the Goldwater Institute to inform the government that if they proceed with the forfeiture and take him to court, he will countersue not only get his Jeep back, but also to have Arizona’s civil forfeiture scheme declared unconstitutional,” Miller says. “If he is successful, it will be a victory for all Arizonans.”

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Bangkok was rocked by mass protests Sunday, as thousands of pro-democracy citizens gathered in opposition to Thailand’s military-backed monarchy.

Upwards of 10,000 people participated in the rally, according to organizers and law enforcement. The event attracted a myriad of groups, including feminist and gay rights organizations that are typically out of frame in Thailand’s conservative culture. But the demonstration’s chief themes were self-government, civil liberties, and the economic devastation wrought by COVID-19. The rally featured a speech from a transgender rights activist and a performance by a group called Rap Against Dictatorship. As night fell, attendees waved phone flashlights in the air.

The rally was also met with a small counter-protest of around 60 royalists waving Thai flags and reenacting historical massacres of dissidents, but the gathering fizzled out.

Law enforcement was largely hands-off at the protests themselves. But the country’s Criminal Court subsequently announced charges for 15 organizers, who planned to turn themselves into authorities.

Since Thailand’s absolute monarchy fell in 1932, the country has seen 12 military coups. It was led directly by a military government until 2019, and it continues to have a military-backed regime. Displeasure with the Thai government had been brewing since the 2019 election: Despite winning a majority of parliamentary seats, the opposition Pheu Thai Party was not allowed to form a government after many reported irregularities and electoral rule changes, leading many to call the results rigged. As a result, the incumbent prime minister, Prayuth Chan-Ocha, was allowed to remain in power.

Discontent with the Thai government has been exacerbated by the COVID-19 pandemic. A massive drop in tourism, which drives 10 percent of Thailand’s GDP, contributed to a 12.2 percent contraction of GDP in the second quarter of this year. The outbreak was exploited to legitimize an extensive crackdown against dissent, according to an Amnesty International report.

Although Thailand is technically a constitutional monarchy, King Maha Vajiralongkorn holds significant sway over the country’s government, and has established an “unprecedented degree of control over the military, the police and the judiciary” according to Pavin Chachavalpongpun of Kyoto University. While the country’s last king, Bhumibol Adulyadej, was highly revered, Vajiralongkorn is much less popular. He rules abroad from Germany. 

Protests in Thailand have grown massively in the last few weeks. Last weekend, about 3,000 people attended a student rally at Thammasat University, where organizers presented the regime with 10 reform demands, including the abolition of the lèse-majesté law, which punishes defamation of the monarchy with prison terms of up to 15 years. The activists also called on the king to stop legitimizing military coups. (Historically, the monarchy has aligned itself with the military and against civilian rule.)

Success for the coalition is far from certain. The Thai government has been measured in its response thus far, but historically it has had few reservations about using deadly force to curb dissent. In 1976, right-wing paramilitary forces, with the backing of law enforcement, murdered at least 46 protesters, and perhaps as many as 100, at Thammasat University.

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