Tuesday, October 4, 2022
HomeHealth LawDestiny 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 virtually 200 “blanket” waivers which mechanically apply to well being care suppliers together with hospitals, different healthcare services, and healthcare professionals. These blanket waivers are efficient via 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 presently prolonged via April 16, 2022. Whereas HHS has not given any indication of an finish date for the PHE, HHS has acknowledged that it’ll present at the very least 60 days’ discover previous to such date. 

Whereas a major variety of the blanket waivers are more likely 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 among the modifications made by blanket waivers will proceed in impact previous the top of the PHE via new legal guidelines together with telehealth enlargement and the comfort of different legal guidelines.

Telehealth. See an outline of the related exercise relating to telehealth enlargement beneath:

  • On March 15, 2022, President Biden signed a spending bundle into regulation 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 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 via 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, similar to 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 rules 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 an extra two years following the top of the PHE. 

These actions present that each lawmakers and well being care business stakeholders imagine that the elevated entry to telehealth providers supplied by these waivers will proceed to learn sufferers past the timeframe of the pandemic and supply some indicia that at the very least among the telehealth waivers which have been prolonged for an extra 151 days after the top of the PHE might grow to be 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 geared toward growing entry to well being care. These waivers embrace, for instance, increasing entry to hospital at dwelling applications 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 underneath 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 via the top of 2022, permitting hospitals that misplaced their 340B eligibility on account 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 top of the PHE and the blanket waivers that got here together with it, there’s purpose to be cautiously optimistic that at the very least among the CMS blanket telehealth waivers, and maybe different CMS blanket waivers, will proceed previous the top of the PHE or grow to be everlasting. 

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


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