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HomeHealth LawDestiny of waivers following expiration of the federal PHE

Destiny of waivers following expiration of the federal PHE

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In response to the COVID-19 pandemic, the Facilities for Medicare & Medicaid Companies (CMS) issued nearly 200 “blanket” waivers which routinely apply to well being care suppliers together with hospitals, different healthcare services, and healthcare professionals. These blanket waivers are efficient by way of the period of the federal Public Well being Emergency (PHE) declared by the Secretary of the US Division of Well being and Human Companies (HHS), which has been prolonged for 90-day intervals because the onset of the pandemic and is at the moment prolonged by way of April 16, 2022. Whereas HHS has not given any indication of an finish date for the PHE, HHS has acknowledged that it’ll present a minimum of 60 days’ discover previous to such date. 

Whereas a big variety of the blanket waivers are prone to expire together with the expiration of the PHE (e.g., these regarding supplier licensing and enrollment and the suspension of enforcement actions), there’s a chance that a few of the adjustments made by blanket waivers will proceed in impact previous the top of the PHE by way of new legal guidelines together with telehealth enlargement and the comfort of different legal guidelines.

Telehealth. See an outline of the related exercise concerning telehealth enlargement under:

  • On March 15, 2022, President Biden signed a spending package deal into legislation which extends sure telehealth blanket waivers for 151 days after the top of the PHE. The prolonged waivers deal with the next:
    • Increasing the originating website definition to incorporate any website at which the affected person is situated;
    • Increasing the eligibility of sure healthcare services and suppliers to furnish telehealth providers;
    • Delaying the 6-month in-person necessities for furnishing psychological well being providers by way of telehealth;
    • Extending protection and fee for audio-only telehealth providers; and
    • Permitting using telehealth providers to fulfill the face-to-face necessities for hospice care.
  • We additionally posted a weblog in April 2021 that mentioned completely expanded Medicare protection for sure telehealth providers.
  • States too, reminiscent of Illinois and Arkansas, have codified sure telehealth waivers initially put in place on the onset of the pandemic (e.g., waivers permitting telehealth providers to be supplied to a affected person in any setting and by any licensed well being care supplier). 
  • Distinguished well being care associations, together with the American Hospital Affiliation, have urged each Congress and CMS to move legal guidelines and laws codifying lots of the telehealth blanket waivers, in addition to to proceed to train enforcement discretion throughout a interval of transition for these blanket waivers that may expire.  
  • Final month (Feb. 2022), Congress launched laws that will prolong sure Drug Enforcement Administration telehealth prescribing waivers for a further two years following the top of the PHE. 

These actions present that each lawmakers and well being care business stakeholders consider that the elevated entry to telehealth providers supplied by these waivers will proceed to profit sufferers past the timeframe of the pandemic and supply some indicia that a minimum of a few of the telehealth waivers which had been prolonged for a further 151 days after the top of the PHE might develop into everlasting.

Leisure of different legal guidelines.  There has additionally been a push by stakeholders to increase or make everlasting sure non-telehealth blanket waivers additionally aimed toward rising entry to well being care. These waivers embrace, for instance, increasing entry to hospital at dwelling packages by suspending the necessities that nursing providers be supplied on premises always, modifying scope of apply limitations on nurse practitioners to be no extra restrictive than what’s allowed below state legislation, and permitting rural hospitals to extend mattress capability when an emergency requires such motion. The federal laws signed yesterday prolonged the 340B eligibility exception for sure hospitals by way of the top of 2022, permitting hospitals that misplaced their 340B eligibility resulting from a drop of their disproportionate share adjustment share on account of COVID-19 to proceed to entry the 340B drug reductions. 

Whereas well being care organizations ought to begin planning for the top of the PHE and the blanket waivers that got here together with it, there’s cause to be cautiously optimistic that a minimum of a few of the CMS blanket telehealth waivers, and maybe different CMS blanket waivers, will proceed previous the top of the PHE or develop into everlasting. 

Jennifer Pike and Raquel Boton are members of Thompson Coburn’s Well being Care group.

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