Home Health Law Destiny of waivers following expiration of the federal PHE

Destiny of waivers following expiration of the federal PHE

Destiny of waivers following expiration of the federal PHE


In response to the COVID-19 pandemic, the Facilities for Medicare & Medicaid Providers (CMS) issued nearly 200 “blanket” waivers which robotically apply to well being care suppliers together with hospitals, different healthcare services, and healthcare professionals. These blanket waivers are efficient by means of the period 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 the moment prolonged by means of April 16, 2022. Whereas HHS has not given any indication of an finish date for the PHE, HHS has said 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 referring to supplier licensing and enrollment and the suspension of enforcement actions), there’s a chance that among the modifications made by blanket waivers will proceed in impact previous the tip of the PHE by means of new legal guidelines together with telehealth growth and the relief of different legal guidelines.

Telehealth. See an outline of the related exercise relating to telehealth growth under:

  • On March 15, 2022, President Biden signed a spending package deal into regulation which extends sure telehealth blanket waivers for 151 days after the tip of the PHE. The prolonged waivers deal with the next:
    • Increasing the originating web site definition to incorporate any web site 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 means of telehealth;
    • Extending protection and fee for audio-only telehealth providers; and
    • Permitting the usage of telehealth providers to satisfy 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, resembling 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). 
  • Outstanding well being care associations, together with the American Hospital Affiliation, have urged each Congress and CMS to move legal guidelines and laws codifying most 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 might lengthen sure Drug Enforcement Administration telehealth prescribing waivers for an extra two years following the tip of the PHE. 

These actions present that each lawmakers and well being care trade stakeholders imagine that the elevated entry to telehealth providers supplied by these waivers will proceed to learn sufferers past the time-frame of the pandemic and supply some indicia that a minimum of among the telehealth waivers which had been prolonged for an extra 151 days after the tip of the PHE might change 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 aimed toward growing entry to well being care. These waivers embody, for instance, increasing entry to hospital at house applications by suspending the necessities that nursing providers be supplied on premises always, modifying scope of observe limitations on nurse practitioners to be no extra restrictive than what’s allowed beneath state regulation, 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 means of the tip of 2022, permitting hospitals that misplaced their 340B eligibility as a result of 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 tip of the PHE and the blanket waivers that got here together with it, there’s cause to be cautiously optimistic that a minimum of among the CMS blanket telehealth waivers, and maybe different CMS blanket waivers, will proceed previous the tip of the PHE or change into everlasting. 

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



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