By: Howard Bogard, Burr & Forman
The Biden Administration recently announced that the COVID-19 Public Health Emergency (“PHE”) will end May 11, 2023. The PHE has been in effect since January of 2020. During the PHE, the Centers for Medicare & Medicaid Services (“CMS”) and other regulatory agencies eased certain restrictions for healthcare providers so as to expand access to care during the PHE. With Biden’s announcement, many of these waivers, regulations and guidance announcements relied upon and utilized by Alabama healthcare providers will end requiring providers to review their current practices to ensure future compliance. Notably, however, the majority of current Medicare telehealth flexibilities and waivers will remain in place through December 31, 2024 due to the Consolidated Appropriations Act of 2023.
Under Section 1135 of the Social Security Act, the Department of Health and Human Services issued waivers for certain provisions of the Medicare and Medicaid programs. Some of the waivers were “blanket” waivers applicable to all healthcare providers participating in the Medicare and Medicaid programs and some were “application” waivers applicable to the requesting provider or State. The number of waivers are too numerous to list individually, but apply to just about every type of healthcare provider, including physicians, hospitals (including rural, critical access, psychiatric, rehabilitation and long-term care), rural health clinics and federally qualified health centers, skilled nursing facilities, home health agencies, hospice, end stage renal dialysis facilities, ambulatory surgery centers, ambulance services and DMEPOS providers. For a summary of the COVID-19 blanket waivers visit https://www.cms.gov/files/document/covid-19-emergency-declaration-waivers.pdf.
During the PHE, the Office for Civil Rights issued guidance relaxing certain HIPAA privacy and security rules. Likewise, CMS relaxed certain restrictions under the Federal Stark Law and the Office of Inspector General relaxed certain restrictions under the Federal Anti-Kickback Statute. These regulatory enforcement policies will end upon termination of the PHE.
As referenced above, the PHE waivers for telehealth will remain in place through the end of 2024. Under the telehealth waivers, CMS expanded the types of healthcare professionals who can furnish distant site telehealth services to include all eligible Medicare providers. This allows healthcare professionals who were previously ineligible to furnish and bill for Medicare telehealth services, including physical therapists, occupational therapists, speech language pathologists and others, to receive payment for Medicare telehealth services. Further, CMS waived the requirements for use of video technology thereby allowing the use of audio-only equipment to furnish certain telehealth services.
For healthcare providers who have relied on a PHE waiver to offer services, it is critical to identify those waivers, confirm the applicable expiration date and take appropriate steps to change current operations to reflect the loss of the waivers and the implementation of the pre-PHE regulations, rules and guidelines.
Howard Bogard is a partner with Burr & Forman LLP and is the Chair of the firm’s Health Care Practice Group. Howard may be reached at (205) 458-5416 or firstname.lastname@example.org.