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May 26, 2023

Implications of the End of the COVID-19 Public Health Emergency on Telehealth

This Bulletin is brought to you by AHLA’s Life Sciences Practice Group.
  • May 26, 2023
  • Ashley O. Ogedegbe , McDermott Will & Emery LLP
  • Rachel Stauffer , McDermott+Consulting

On January 27, 2020, the COVID-19 pandemic was officially declared a public health emergency (PHE) by the former Secretary of the Department of Health and Human Services (HHS), Alex Azar. In the first few weeks and months following the onslaught of the pandemic the federal government used its authority under the PHE, as well as additional ones provided by Congress, to adapt a variety of regulations to help meet the needs of patients and providers in a quickly-evolving health landscape. These flexibilities allowed for an unprecedented level of changes in a very short amount of time in an attempt to keep patients and providers as safe as possible while continuing to appropriately and adequately treat patients, all while facing the unknowns of the COVID-19 virus.

As the PHE continued to be renewed over the next three years, many of these waivers and flexibilities remained in place. On January 23, 2023, the Administration announced its intention to end the COVID-19 PHE on May 11, 2023. Between January 23 and May 11 of this year, HHS and the Centers for Medicare & Medicaid Services (CMS) released fact sheets, frequently asked questions, memos, and other guidance that helped patients and providers understand which COVID-19 PHE policies would end, which would be extended temporarily, and which were made permanent.

One of the areas of most impact was around telehealth flexibilities. This article discusses the background of the authorities used during the COVID-19 PHE, the resulting policies, and the implications of the end of the COVID-19 PHE on providers and patients as it relates to telehealth.

Telehealth Flexibilities

The HHS Secretary has authority to waive telehealth requirements that is distinct from the authority granted to the Secretary under Section 1135 of the Social Security Act. Congress provided specific telehealth waiver authority through two COVID-19 stimulus bills. The Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (the first stimulus bill) gave the Secretary authority to waive two specific requirements for telehealth services under 1834(m): the “originating site” requirements and restrictions on the type of telecommunication used for providing telehealth services.

The Coronavirus Aid, Relief, and Economic Security Act (CARES) Act subsequently expanded the telehealth waiver authority to include all provisions in 1834(m). CARES also authorized the following waivers:

  • Allowed Federally Qualified Health Centers (FQHCs) and rural health clinics (RHCs) to provide telehealth services to Medicare beneficiaries;
  • Eliminated the requirement that Medicare beneficiaries with end-stage renal disease receiving home dialysis have a face-to-face clinical assessment at least once every three months;
  • Allowed Medicare beneficiaries receiving hospice care to have a face-to-face encounter via telehealth with a hospice physician or nurse practitioner to recertify continued eligibility for hospice care;
  • Required the Secretary of HHS to issue clarifying guidance regarding the use of telecommunications systems for home health services, including remote patient monitoring;
  • Increased reimbursement to hospitals by providing a 20% add-on payment for inpatient hospital discharges related to COVID-19;
  • Waived the requirement that patients of an Inpatient Rehabilitation Facility receive at least 15 hours of therapy a week (three hours of therapy per day, five days per week);
  • Adjusted transition rules for payment reductions for durable medical equipment;
  • Required Medicare prescription drug plans and Medicare Advantage drug plans to permit Part D plan enrollees to obtain a 90-day supply of a covered Part D drug (even if the drug is subject to cost and utilization management, medication therapy management, or other such programs); and
  • Expanded the type of hospitals eligible for the Medicare hospital accelerated payment program.

Under these CARES Act provisions, CMS took significant action to increase the access to and the use of telehealth services, and to provide flexibilities for providers to complete certain administrative requirements virtually. Greater reliance on virtual care was intended to limit patient travel and exposure to COVID-19 and reduce the spread of the virus, in adherence to other federal guidelines. At the same time, telehealth gave providers an opportunity to provide some health care services to their patients without a face-to-face encounter, preserving revenue during the crisis.

The two stimulus laws specified that these authorities and waivers are permitted for the duration of the PHE, which meant that the telehealth waivers, along with the CARES Act policies noted above, would end when the PHE expired.

However, on March 15, 2022, the President signed into law the Consolidated Appropriations Act, 2022, (CAA 2022). This legislative funding package included extensions of certain telehealth flexibilities related to the PHE for 151 days (approximately five months) after the PHE ends. This included:

  • Expanding the list of Medicare qualifying telehealth providers;
  • Waiving the originating site and geographic location restrictions;
  • Waiving the in-person requirement for mental telehealth services;
  • Continuing coverage of audio-only telehealth services;
  • Allowing FQHCs and RHCs to be reimbursed for telehealth services; and
  • Reinstating the safe harbor for health savings account (HSA)-eligible High Deductible Health Plans (HDHPS) enrollees for telehealth benefits.

Given the uncertainty around the PHE ending, Congress effectively provided some breathing room to patients, providers, and other stakeholders. It also gave Congress a necessary window of opportunity to further extend or preserve these temporary telehealth policies.

Subsequently, with increased likelihood of an end to the PHE, the Consolidation Appropriations Act, 2023 (CAA 2023) further extended these flexibilities through December 31, 2024. The President signed the CAA 2023 into law on December 29, 2022. This action effectively untied these flexibilities from the continued existence of the PHE. However, while the CAA 2023 decouples the extension of many telehealth flexibilities from the PHE and provides extended coverage through December 31, 2024, other telehealth policies remain tied to the PHE and will expire if additional legislative or regulatory action is not taken.

These charts outline key 2023 CAA telehealth provisions within their broader policy context and highlight certain telehealth policies that require further action to be extended beyond the PHE or made permanent. Additional legislative or regulatory actions are still required to ensure continued telehealth access for patients and providers after the PHE ends.