Destiny of waivers following expiration of the federal PHE

In response to the COVID-19 pandemic, the Facilities for Medicare & Medicaid Providers (CMS) issued virtually 200 “blanket” waivers which mechanically apply to well being care suppliers together with hospitals, different healthcare amenities, and healthcare professionals. These blanket waivers are efficient by the length of the federal Public Well being Emergency (PHE) declared by the Secretary of the US Division of Well being and Human Providers (HHS), which has been prolonged for 90-day durations because the onset of the pandemic and is at present prolonged by April 16, 2022. Whereas HHS has not given any indication of an finish date for the PHE, HHS has acknowledged that it’s going to present at the least 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 number of the adjustments made by blanket waivers will proceed in impact previous the top of the PHE by new legal guidelines together with telehealth growth and the relief of different legal guidelines.

Telehealth. See an summary of the related exercise concerning telehealth growth 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 tackle the next:
  • Increasing the originating web site definition to incorporate any web site at which the affected person is positioned;
  • Increasing the eligibility of sure healthcare amenities and suppliers to furnish telehealth companies;
  • Delaying the 6-month in-person necessities for furnishing psychological well being companies by telehealth;
  • Extending protection and cost for audio-only telehealth companies; and
  • Permitting the usage of telehealth companies 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 companies.
• States too, resembling Illinois and Arkansas, have codified sure telehealth waivers initially put in place on the onset of the pandemic (e.g., waivers permitting telehealth companies 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 go 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 lengthen sure Drug Enforcement Administration telehealth prescribing waivers for an extra two years following the top of the PHE. 

These actions present that each lawmakers and well being care trade stakeholders consider that the elevated entry to telehealth companies supplied by these waivers will proceed to profit sufferers past the timeframe of the pandemic and supply some indicia that at the least a number of the telehealth waivers which have been prolonged for an extra 151 days after the top of the PHE could turn into everlasting.

Rest of different legal guidelines.  There has additionally been a push by stakeholders to increase or make everlasting sure non-telehealth blanket waivers additionally geared toward growing entry to well being care. These waivers embody, for instance, increasing entry to hospital at residence packages by suspending the necessities that nursing companies be supplied on premises always, modifying scope of apply limitations on nurse practitioners to be no extra restrictive than what’s allowed underneath 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 the top of 2022, permitting hospitals that misplaced their 340B eligibility attributable to 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 at the least a number of the CMS blanket telehealth waivers, and maybe different CMS blanket waivers, will proceed previous the top of the PHE or turn into everlasting. 

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