The Public Health Emergency (PHE) and Your Practice
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The Public Health Emergency (PHE) is expiring. Our team of healthcare advisors have compiled the details explaining how this will affect your practice.
Background
On January 30, 2023, the Biden Administration announced its intent to end the national
emergency and public health emergency declarations related to the COVID-19 pandemic on May 11, 2023. These emergency declarations have been in place since early 2020 and modified federal government requirements in a range of areas, including in the Medicare, Medicaid, and CHIP programs, and in private health insurance, as well as provide liability immunity to providers who administer services. In addition, Congress enacted legislation including the Families First Coronavirus Response Act (FFCRA), the Coronavirus Aid, Relief, and Economic Security (CARES) Act, the American Rescue Plan Act (ARPA), and the Consolidated Appropriations Act, 2023 (CAA) which provided additional flexibilities that are scheduled to expire at the end of the PHE.
While many programs and waivers will conclude on May 11, others will remain in place through December 31, 2024. As a result, the official end of the COVID-19 PHE will impact hospital and physician practice operations for an extended period.
Key Flexibilities Triggered by Major COVID-19 Federal Emergency Declarations
Qualified Payment Program Merit-Based Incentive Payment System (MIPS)
- CMS will accept MIPS EUC (Extreme and Uncontrollable Circumstances) Exception applications starting in Spring 2023 and will close on January 2, 2024, for the 2023 performance year.
Telehealth Flexibility Guidance
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Medicare telehealth flexibilities including originating site and geographic restrictions, qualifying providers eligibility to furnish telehealth, coverage of audio-only services, Federal Qualified Health Centers (FQHCs), and Rural Health Clinics (RHCs) furnishing telehealth, behavioral, and mental health in-person requirements have been extended through December 31, 2024. This temporary extension includes:
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FQHCs and RHCs can serve as a distant site provider for non-behavioral/mental telehealth services.
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Medicare patients can receive telehealth services in their home.
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There is no geographic restriction for originating site for non-behavioral/mental telehealth services.
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Some non-behavioral/mental telehealth services can be delivered using audio-only communication platforms.
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An in-person visit within six months of an initial behavioral/mental telehealth service and annually thereafter is not required.
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Telehealth services can be provided by physical therapist, occupational therapist, speech language pathologist, or audiologist.
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- Medicare will require providers to resume reporting their home address on the Medicare enrollment record when the PHE ends. In order to continue providing telehealth services from a home address, providers will have to complete a credentialing application and receive approval from Medicare.
- Medicare telehealth state license requirements to furnish telehealth in other states will expire at the end of the PHE.
- A list of temporary and permanent telehealth CPT codes is expected to be published before the end of the PHE.
HIPAA Waived Penalties – Telemedicine
- The PHE waived potential penalties for HIPAA violations against the health care provider that serve patients through everyday communications technologies during the COVID-19 nationwide PHE. This provision will end with the PHE.
COVID-19 Vaccines, Testing, and Treatment
- Medicare COVID-19 vaccinations are covered under Part B without cost sharing. Treatment of COVID-19 patients will fall under the Medicare cost sharing provision at the end of the PHE.
- Provisions in the Medicaid program to cover all Advisory Committee on Immunization Practices (ACIP) recommend vaccines for adults, including the COVID-19 vaccine, and vaccine administration without cost sharing as a mandatory Medicaid benefit. The COVID-19 vaccine and COVID-19 treatment will continue to take place without cost sharing through September 30, 2024.
- Out of pocket expenses for certain COVID-19 treatments may change, depending on the individual’s health care coverage
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HHS will no longer have express authority to require testing data from labs, which may affect the reporting of negative test results and impact the ability to calculate percentage positivity of COVID-19 test in some jurisdictions. The CDC has been working to encourage states to continue sharing vaccine administration data beyond the PHE.
Prescribing Controlled Substances
- Access to buprenorphine for opioid use disorder treatment in Opioid Treatment Programs (OTPs) will not be affected by the expiration of the PHE.
- Access to expanded methadone take-home doses for opioid use disorder treatment will not be affected.
- Health care providers’ ability to safely dispense controlled substances via telemedicine without an in-person interaction is affected; however, the DEA is planning to initiate rulemaking that would extend these flexibilities under certain circumstances.
Stark Law Flexibilities
- There are temporary exemption sanctions for certain arrangements that are “solely related” to COVID-19 purposes. Physicians have been allowed to bypass some self-referral rules during the PHE to ensure access to care for Medicare and Medicaid beneficiaries.
Medicaid
- The unwinding of the Medicaid Continuous Enrollment provision is also slated to end. Millions that retained Medicaid coverage during the PHE may lose eligibility. States can resume Medicaid eligibility redeterminations as of April 1, 2023.
Workforce Staffing Flexibilities
- Workforce staffing flexibilities allowed for greater flexibility during the PHE, including nurse anesthetists working without physician supervisors, and nurse practitioners working without physician supervision in certain circumstances. Non-physician practitioners have been allowed to supervise diagnostic tests. Physicians whose privileges have expired, or new physicians who have not received full approval, were able to continue to practice at the hospital to assist COVID-19 related workforce shortages. CMS also allowed virtual supervision of medical residents. These flexibilities will expire with the end of the PHE.
This is not meant to be an exhaustive list of all federal policies and regulatory provisions made in response to COVID-19 emergency declarations. If you have questions related to the expiration of the Public Health Emergency, please contact our Healthcare Advisory Team by calling 205-443-2500.
Additional information about the PHE’s expiration is available here.