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What to Expect After the COVID-19 Public Health Emergency

Posted: May 02, 2023

During the pandemic, the U.S. Department of Health and Human Services took steps to expedite the adoption and awareness of telehealth. Over the last three years, some of these telehealth flexibilities have been made permanent and some are only temporary.

HHS’s plan is to end the Public Health Emergency on May 11, 2023.

The Consolidated Appropriations Act of 2023 extended many of the telehealth flexibilities authorized during the COVID-19 public health emergency through December 31, 2024.

Below are the latest updates we have gathered from and Foley & Lardner LLP.

Permanent Medicare Changes

Federally Qualified Health Centers (FQHCs) and Rural Health Clinics (RHCs) can serve as distant site providers for behavioral/mental telehealth services.

Medicare patients can receive telehealth services for behavioral/mental health care in their homes.

There are no geographic restrictions for originating sites for behavioral/mental telehealth services.

Behavioral/mental telehealth services can be delivered using audio-only communication platforms.

Rural hospital emergency departments are accepted as originating sites.

    Temporary Medicare Changes

    Federally Qualified Health Center (FQHC)/Rural Health Clinic (RHC) can serve as a distant site provider for non-behavioral/mental telehealth services.

    Medicare patients can receive telehealth services authorized in the Calendar Year 2023 Medicare Physician Fee Schedule in their home.

    There are no geographic restrictions for originating site for non-behavioral/mental telehealth services.

    Some non-behavioral/mental telehealth services can be delivered using audio-only communication platforms.

    An in-person visit within six months of an initial behavioral/mental telehealth service, and annually thereafter, is not required.

    Telehealth services can be provided by a physical therapist, occupational therapist, speech language pathologist, or audiologist.

      Temporary Changes through the end of the PHE

      Telehealth can be provided as an excepted benefit.

      Medicare-covered providers may use any non-public facing application to communicate with patients without risking any federal penalties — even if the application isn’t in compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

          Telemedicine Controlled Substances and Ryan Haight Act

          During the PHE, the Drug Enforcement Agency (DEA) waived the Ryan Haight Act’s in-person exam requirement for the prescribing of controlled substances. This ensures both established and new patients have the ability to receive medically necessary prescriptions via telemedicine.

          Efforts are in the works to amend the Ryan Haight Act and encourage the DEA to activate the telemedicine special registration rule before the PHE expires, including pending federal legislation. However, the Ryan Haight Act has not been changed and the DEA has not activated the telemedicine special registration rule.

          When the PHE expires, the in-person requirement is set to revert, without any special registration rule or other process established to ensure continuity of care. Therefore, continued prescribing of controlled substances for patients never seen in-person, and only through virtual means during the PHE, will be prohibited and these patients would either need to be seen in-person or have their care transitioned to a local provider.

          RPM Services Are Back to Being Limited to “established patients”

          In 2021, CMS reiterated that outside of the PHE, RPM services are limited to “established patients.” However, for the duration of the PHE, CMS waived the “established patient” requirement and allowed practitioners to bill for RPM for new patients.

          Come May 11 when the PHE ends, CMS will require RPM services to be limited only to established patients. CMS’ statements suggest after the PHE the physician must first conduct a new patient evaluation and management service before rendering RPM.

          Virtual Direct Supervision Scheduled to End This Year

          During the PHE, CMS temporarily changed direct supervision rules to allow the supervising professional to be remote and use real-time, interactive audio-video technology. That change did not require the professional’s real-time presence at, or live observation of, the service via interactive audio-video technology throughout the performance of the procedure.

          In the 2023 physician fee schedule, CMS declined to extend this policy beyond the end of the calendar year in which the PHE ends. Therefore, virtual direct supervision will expire at the end of this year unless CMS revises its policy in future rulemaking.

          End of HIPAA-related Enforcement Discretion

          During the PHE, the HHS Office for Civil Rights (OCR) exercised enforcement discretion allowing providers to use telehealth in good faith even if their platforms or software did not follow Health Insurance Portability and Accountability Act (HIPAA) rules. However, this enforcement discretion only remains in effect until the end of the PHE.

          After May 11, the OCR will resume enforcement of penalties on providers for noncompliance with HIPAA rules for technology use. Ahead of the end of the PHE, OCR has provided clarification on how and the circumstances under which the HIPAA rules apply to telehealth.

          In short, providers and patients want to make sure to use a HIPAA-compliant platform when sharing any personal health information, conducting telehealth sessions, and communicating with physicians. To learn more about our latest HIPAA-compliant software solution, click here.