The Beginning of the End – The Public Health Emergency Has an End Date
On January 30, 2023, the Biden Administration announced its intent to end the COVID-19 public health emergency (“PHE”) on May 11, 2023. With the end of the PHE comes the end of federal regulatory waivers and flexibilities that have in some instances allowed providers to expand the care provided and lifted many requirements that must be met before patients are treated. Providers must now roll back certain policies and practices to ensure their compliance and avoid penalties.[1]
Telehealth Flexibilities
One major change in the provision of healthcare during the PHE was the expansion of when medical services could be provided via telehealth and Medicare’s coverage of such services. Due to permanent legislative changes, Medicare patients are now able to receive telehealth services for behavioral and mental health care in their home with no geographic restrictions for the originating site permanently. However, many waivers will end with the PHE until legislative action is taken to permanently extend these flexibilities. While not a permanent extension, the Consolidated Appropriations Act of 2023 extended the following telehealth flexibilities through December 31, 2024:
- Healthcare providers are eligible to bill Medicare for telehealth services regardless of where the patient or provider is located (allowing for telehealth visits to occur at the patient’s home);
- Audio-only telehealth visits will continue to be reimbursable under Medicare;
- The list of providers eligible to deliver telehealth services continues to include physical therapists, occupational therapists, speech language pathologists, and audiologists;
- Hospitals’ care-at-home programs may continue to provide hospital services to patients in their homes, including through telehealth;
- Recertification of eligibility for hospice care may continue;
- Patients with High-Deductible Health Plans with Health Savings Accounts can utilize first dollar coverage for telehealth services without first having to meet their minimum deductibles;
- Federally Qualified Health Centers (“FQHCs”) and Rural Health Clinics (“RHCs”) can provide telehealth services to Medicare beneficiaries (i.e., can be distant site providers), rather than being limited to being an originating site provider for telehealth (i.e., where the beneficiary is located).
- An in-person visit within six months of an initial behavioral or mental health telehealth service and annually thereafter is not required until December 31, 2024.
Providers used telehealth during the PHE to perform many required face-to-face visits necessary to determine eligibility or follow-up examinations. However, recertification of eligibility for hospice and required face-to-fact assessments for home health may no longer be performed via telehealth after December 31, 2024. For subsequent inpatient visits, the use of telehealth is limited thereafter to once every three days. For subsequent SNF visits, the use of telehealth is limited thereafter to once every 14 days. For critical care consults, the use of telehealth is limited to once per day. Providers should discontinue the use of telehealth for required face-to-face visits for home dialysis patients and for inpatient rehabilitation facility patients. To the extent that Medicare national or local coverage decisions require a face-to-face visit for evaluations and assessments, providers can no longer perform these visits via telehealth.
Providers must discontinue prescribing any controlled substance following telehealth visits unless the prescribing provider previously performed an in-person medical evaluation of the patient. However, the Substance Abuse and Mental Health Services Administration (“SAMHSA”) has found that allowing patients to start buprenorphine through telehealth has been safe and effective and has proposed to make this flexibility permanent through a Notice of Proposed Rulemaking in December 2022. SAMHSA has indicated it will provide a solution if the proposed regulation is not finalized prior to the end of the PHE.
Hospitals
During the PHE, CMS issued waivers and flexibilities relating to expanded hospital capacity. With the end of the PHE, hospitals that took advantage of these flexibilities must be prepared to discontinue the use of any of these temporary expansion sites and non-patient care areas (such as converted conference rooms) and must instead provide services to patients within their hospital departments in compliance with applicable Conditions of Participation. Each room that is used for patients to sleep overnight must have an outside window or outside door. Any provider-based department that was relocated to a new off-campus location during the PHE must be relocated to its original site, unless the relocated department applies for and receives an extraordinary circumstances relocation exception. If the hospital fails to do this, the relocated department will be treated as a non-exempted provider-based department.
For billing, hospitals must discontinue billing Medicare for therapy and educational services and educational services furnished remotely or infusion and would care services provided in person by hospital staff to a patient at home, as the patient’s home can no longer be treated as a hospital outpatient department. This is distinguishable from Medicare payments for behavioral health services furnished remotely by hospital staff to the patient at home, which may continue.
Hospitals must comply with the Emergency Medical Treatment and Labor Act (“EMTALA”) requirements regarding the location of medical screening examinations and should discontinue off-site patient screenings. Absent separate swing bed approvals, hospitals must also discontinue the use of hospital swing beds to furnish post-acute services billed under SNF PPS, must discontinue housing acute care patients in excluded distinct part units, and must discontinue housing excluded inpatient psychiatric unit and inpatient rehabilitation unit patients in acute care units. Hospitals must be sure to confirm that each Medicare inpatient discharged to a SNF satisfies the three-day prior hospitalization requirement.
For hospitals classified as Sole Community Hospitals or Medicare-Dependent Hospitals, normal eligibility requirements should resume. Finally, hospitals must ensure that all practitioners who furnish telehealth services to its hospital patients through agreements with distant-site hospitals or distant-site telemedicine entities have been credentialed and granted privileges as appropriate.
Physicians and Other Practitioners
Physicians and other practitioners who provide supervision will be permitted to continue providing direct supervision virtually through December 31, 2023; thereafter, any service that requires direct supervision of a physician or practitioner will require such individual to be physically present in the same suite of offices. All physicians and practitioners will have to comply with all national and local coverage decision requirements regarding whether a specific practitioner type or physician specialty must furnish or supervise a service, instead of allowing the Chief Medical Officer at the facility to have the authority to vary those requirements based on staffing considerations.
Virtual check-ins and e-visits for new patients must cease with the end of the PHE. In order to bill for remote physiologic and remote therapeutic monitoring, there must be at least 16 days of monitoring data in a 30-day period.
Skilled Nursing Facilities
With the end of the PHE, an important change is that Medicare beneficiaries must return to having a three-day prior hospitalization stay in order to qualify for SNF coverage. The Medicare beneficiary must also start and complete a 60-day “wellness period” to renew SNF benefits.
SNFs should discontinue the COVID-19 testing for residents and staff and should respect the patients’ rights to share a room with a roommate of choice when practicable and the patients’ rights to refuse transfer to another room at the facility.
SNFs must comply with requirements for preadmission screening for individuals with mental disorders and/or intellectual disabilities and ensure that they adhere to all requirements with regard to resident transfers and discharges.
To mitigate legal risk, further continuity of care, and avoid issues of patient abandonment, health companies relying on the PHE waivers for telehealth services should take steps to bring operations into full compliance with applicable requirements now that the PHE is ending. We will continue to monitor for regulatory and legislative changes and provide informal guidance on how the end of the PHE will continue to impact health care providers and the health care industry as whole.
Should you or your facility have any questions about the implications of the end of the PHE on your practice, please contact Peter Mellette, Harrison Gibbs, Elizabeth Dahl Coleman, or Trace Hall at Mellette PC.
Mellette PC acknowledges with appreciation Nicole Bemberis (William & Mary Law School ’24) for her assistance in preparing this advisory.
This client advisory is for general educational purposes only. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice.
[1] See generally Fact Sheet: COVID-19 Public Health Emergency Transition Roadmap, Health and Human Services (Feb. 09, 2023), https://www.hhs.gov/about/news/2023/02/09/fact-sheet-covid-19-public-health-emergency-transition-roadmap.html; See also End of the PHE Compliance Checklist, PYA (March 14, 2023), https://www.pyapc.com/wp-content/uploads/2023/03/PYA-End-of-the-PHE-Compliance-Checklist-Final-031323-PRESS.pdf.
