Connecticut Health Law

The Centers for Medicare & Medicaid Services (CMS) used its emergency waiver authority to relax many aspects of health care delivery during the federal Public Health Emergency for COVID-19 (PHE) to allow health care professionals to respond rapidly to patients affected by the virus. Based on current COVID-19 trends, the U.S. Department of Health and Human Services is planning for the PHE to end on May 11, 2023 and, with that, some waivers will expire while others have been extended or been made permanent.

With the clock ticking down, health care practitioners and administrators are encouraged to read on for the status of ten key waivers that will affect Medicare providers and their patients when the PHE ends:

1. Medical staff privileges. To address workforce concerns related to COVID-19, CMS has allowed physicians, whose privileges at a hospital would have expired, to continue practicing at the hospital and for new physicians to be able to practice in a hospital before full medical staff/governing body review and approval. These waivers will end at the conclusion of the PHE.

2.  Substitute providers. CMS has allowed a physician who is unavailable to provide services to use the same substitute for the entire time he or she is unavailable during the COVID-19 emergency, plus an additional period of no more than 60 continuous days after the PHE expires. On the 61^st day after the PHE ends (or earlier if desired), the regular physician must use a different substitute or return to work in his or her practice for at least one day in order to reset the 60-day clock. Similar provisions apply to physical therapists working in a “health professional shortage area,” a “medically underserved area” or a “rural area,” as these terms are defined in the Social Security Act. Exceptions exist for a physician or physical therapist called or ordered to active duty as a member of a reserve component of the U.S. armed forces.

3.  Telehealth.  Many telehealth flexibilities made available during the PHE will remain in place, while others are set to expire at the conclusion of the PHE or a later date. For example:

• During the PHE, a subsequent inpatient hospital visit may be furnished via Medicare telehealth, without the limitation that the telehealth visit be once every three days (CPT codes 99231-99233). Following the end of the PHE, subsequent hospital care services will be limited to one telehealth visit every three days.
• CMS has allowed practitioners to render telehealth services from their home without reporting their home address on their Medicare enrollment, while continuing to bill from their currently-enrolled location. This waiver will continue through December 31, 2023 according to CMS guidance issued to physicians and other clinicians dated February 24, 2023. However, practitioners should be aware of undated guidance from CMS directed at hospitals that states that this waiver will end when the PHE ends.
• Medicare will continue to pay for audio-only coverage for approved evaluation and management services (click on “List of Telehealth Services for Calendar Year 2023”) through December 31, 2024. CMS has stated that it anticipates addressing updates for 2024 and beyond through its established processes.
• Certain providers will no longer be eligible for Medicare payment for telemedicine after December 31, 2024, including physical therapists, occupational therapists and speech language pathologists. However, behavioral/mental telehealth services may be delivered using audio-only communication platforms on a permanent basis, but an in-person visit within six months of an initial behavioral/mental telehealth service, and annually thereafter, will again be required after December 31, 2024.
• During the PHE, practitioners registered with the federal Drug Enforcement Administration (DEA) have been permitted to prescribe controlled substances to patients without an in-person interaction. This included audio-only modalities for initiating buprenorphine prescriptions. Proposed regulations have been issued that would extend some of these flexibilities.

4.  Expedited processing of pending and new Medicare applications. CMS expedited pending and new Medicare applications from providers and suppliers, including physicians and non-physician practitioners, received on or after March 1, 2020. When the PHE ends, CMS has stated that it will resume normal application processing times.

5.  Simplified opt-out provisions For practitioners who opted out of Medicare and wished to cancel their opt-out status early and enroll in Medicare, CMS has allowed Medicare Administrative Contractors (MACs) to accept opt-out cancellation requests via email, fax, or phone call to a hotline during the PHE. CMS has also allowed providers to submit an application to cancel their opt-outs without submitting written notification to the MAC. When the PHE ends, this waiver will terminate and opted-out practitioners will not be able to cancel their opt-out statuses earlier than the time provided by 42 CFR §405.445.

6.  Practitioners practicing outside their state of enrollment. During the PHE, CMS has allowed licensed physicians and other practitioners to bill Medicare for services provided outside of their state of enrollment. When the PHE ends, CMS will continue to allow for a total deferral to state law. In other words, there will be no CMS-based requirement that a provider must be licensed in his/her state of enrollment.

7.  Teaching physicians. During the PHE, if a resident participates in a service furnished in a teaching setting, Medicare payment has been made if a teaching physician is present through audio/video real-time communications technology during the key portion of the service (including Medicare telehealth services) for which payment is sought. This flexibility, however, has not applied in the case of surgical, high risk, interventional, or other complex procedures, services performed through an endoscope or anesthesia services. After the PHE, only teaching physicians in residency training sites located outside of a metropolitan statistical area may be present through audio/video real-time communications technology, with the exceptions noted above.

8.  Medical Records. Prior to the PHE, CMS had simplified certain recordkeeping requirements for Medicare-covered services to allow physicians and certain non-physician practitioners to review and verify (rather than redocument) information added to the medical record by a member of the medical team. During the PHE, CMS extended this practice across the spectrum of all Medicare-covered services, and included therapists in the list of practitioners allowed to engage in this type of recordkeeping. These simplified medical record documentation policies will continue to be in effect after the PHE ends.

However, for practitioners in a hospital setting, CMS will end certain other medical recordkeeping waivers at the conclusion of the PHE, including the waivers of the provisions in 42 CFR §482.24(a) through (c), which cover, among other things: (i) staffing of the medical records department of a hospital; (ii) the requirements for the form and content of the medical record; (iii) record retention requirements; and (iv) the requirement to complete medical records within 30 days following discharge.

9.  Care of Patients in a Hospital. In order to allow hospitals to use other practitioners, including physician assistants and nurse practitioners, to the fullest extent possible during the PHE, CMS waived the Condition of Participation that a Medicare patient in a hospital be under the care of a physician and that a physician be on call at all times. This waiver will end at the conclusion of the PHE.

10.  Beneficiary Access to Vaccinations. The rule that CMS put into place in October 2020 that COVID-19 vaccinations would be covered under Medicare Part B without co-pays or deductibles will continue after the PHE.  Similarly, Medicaid will continue to cover all COVID-19 vaccinations without a co-pay or cost sharing through September 30, 2024.

For the latest updates regarding these and other CMS waivers, check this link.

Please contact any member of our Health Care practice should you have any questions.