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Telehealth Flexibility Updates: HIPAA, DEA, and CMS

Client Alert
May 12, 2023

The Covid-19 Public Health Emergency (PHE) officially ended on May 11, 2023.[1] But what does that mean for telehealth, a field that expanded exponentially during the PHE? Fortunately, many of the flexibilities will remain intact, at least temporarily. This client alert presents a brief overview of the timelines that providers need to follow, but for a more comprehensive review of telehealth flexibilities and when they will end, please see my presentation on the same topic here:  https://youtu.be/mIpFaKG7jio.[2]

HIPAA

On May 11, the Notice of Enforcement Discretion issued under HIPAA ended, which means providers must use HIPAA-compliant platforms and patient communication tools for all telehealth appointments. The Office of Civil Rights has released a statement allowing for a 90-day transition period for covered health care providers to come into compliance with the HIPAA rules. After that, providers should expect enforcement to resume.

Medicare

The Centers for Medicare and Medicaid Services (CMS) have extended many of the telehealth flexibilities offered during the pandemic but not all. For example, the waivers regarding telehealth and remote patient monitoring (RPM) cost sharing expired on May 11. [3]  CMS currently reimburses telehealth services at non-facilities at an equivalent rate to in-person rates, but this Medicare payment parity is scheduled to end on December 31, 2023.[4] Also, at the end of 2023, CMS will no longer allow virtual direct supervision.[5] Through the Consolidated Appropriations Act of 2023, many flexibilities were extended through December 31, 2024. [6] These include, among others:

  • FQHCs and RHCs can still serve as distant site providers for non-behavioral and mental telehealth services.
  • Medicare patients may receive telehealth services authorized by the Medicare 2023 physician fee schedule in their homes, and there will be no geographic restriction for the originating site for non-behavioral and mental telehealth services.
  • Certain non-behavioral and mental telehealth services can be delivered using audio-only communication platforms.
  • Providers can use telehealth for recertification of eligibility for hospice care.
  • The acute hospital care at-home program may continue to provide hospital services to patients in their homes using telehealth.

Physical therapists, occupational therapists, speech-language pathologists, or audiologists can still provide telehealth services.

There will be important permanent changes as well including:

  • FQHCs and RHCs can serve as distant site providers for behavioral and mental telehealth services.
  • Medicare beneficiaries can receive telehealth services for behavioral and mental health care in their homes.
  • No geographic restrictions for the originating site for behavioral and mental telehealth services, and services can be delivered using audio-only communication platforms.
  • Rural hospital emergency departments are accepted as originating sites.

DEA – Controlled Substances Prescribing

The DEA proposed new rules for permanent telemedicine flexibilities on Feb. 24, 2023.[1] These rules added flexibility to the Ryan Haight Act, while also trying to guard against any bad actors who are prescribing controlled substances improperly. The new rules would not impact telemedicine consultations that do not involve prescribing controlled substance or practitioners who have previously had an in-person exam. But they would prohibit a practitioner from being able to use telemedicine to prescribe more than a 30-day supply of Schedule III-V non-narcotic controlled medications or a 30-day supply of buprenorphine for the treatment of opioid use disorder without an in-person evaluation or referral from a medical practitioner that has conducted an in-person evaluation. The rules were exceptionally controversial and garnered over 38,000 comments. As a result, the DEA announced on May 10, 2023 that they would allow all COVID flexibilities to continue for another six months, until November 11, 2023. This buys the DEA enough time to rewrite the proposed rules and incorporate the many submitted comments. Therefore, until November 11, 2023 all providers may prescribe controlled substances through telehealth under the same rules that have been utilized throughout the pandemic.

Also notable are all of the telehealth safeguards and rules that individual states have instituted as a result of the COVID-19 pandemic. Ohio, for example, has instituted new laws and rules that govern telehealth for Medicaid patients as well as for all types of providers. The practice and regulation of telehealth will continue to evolve over the next several years, so it is important to understand all of the rules that apply to your practice. For questions, please reach out to attorney Ashley Watson at abwatson@bmdllc.com or any member of the BMD Healthcare Team.

[1]88 FR 12890; 88 FR 12875; DEA Announces Proposed Rules for Permanent Telemedicine Flexibilities, DEA (March 3, 2023, 12:32 PM), https://www.dea.gov/press-releases/2023/02/24/dea-announces-proposed-rules-permanent-telemedicine-flexibilities.

[1] Telehealth policy changes after the COVID-19 public health emergency, Telehealth.HHS.Gov (February 19, 2023, 1:45 PM), https://telehealth.hhs.gov/providers/policy-changes-during-the-covid-19-public-health-emergency/policy-changes-after-the-covid-19-public-health-emergency/.

[2] Please note the presentation was given prior to the DEA’s announcement on May 10, 2023 to extend controlled substance prescribing flexibilities.

[3] OIG Policy Statement Regarding Physicians and Other Practitioners That Reduce or Waive Amounts Owed by Federal Health Care Program Beneficiaries for Telehealth Services During the 2019 Novel Coronavirus (COVID-19) Outbreak, OIG (March 17, 2020); see also FAQs—OIG Policy Statement Regarding Physicians and Other Practitioners That Reduce or Waive Amounts Owed by Federal Health Care Program Beneficiaries for Telehealth Services During the 2019 Novel Coronavirus (COVID-19) Outbreak, OIG (March 24, 2020).

[4] CY 2023 Medicare Physician Fee Schedule (PFS).

[5] CY 2023 Medicare Physician Fee Schedule (PFS).

[6] Consolidated Appropriations Act of 2023, H. R. 2617.

COVID-19Ending the Public Health Emergencypublic health emergencytelehealthHIPAAMedicareCMS
Client Alert

Your Workplace Under Biden

November 9, 2020This is my favorite recurring post – Predictions of How a New Administration Will Affect Your Workplace. Four years ago, we accurately called the emasculation of the 2016 proposed FLSA Overtime Rules (the salary exemption threshold was set at $35,568 in 2019, rather than $47,476 as proposed), we forecasted a conservative shift of the NLRB and its results (a roll-back of employee rights, social media policy evaluations, and joint employer rules), and we nailed the likelihood of multiple conservative appointments to the United States Supreme Court and its long-term effects (although I completely failed to predict that my ND classmate Amy Coney Barrett would fill the final vacancy during the Trump administration). This time, the L+E Practice of BMD has decided to make it a group effort at predicting what will happen, what probably happen, and what might happen under President Biden. As always, please save this in your important files and pull it out four (or eight) years from now to judge our accuracy.Client Alert

HHS Provider Relief Funds Reporting Requirements: Important Updates Every Provider Should Know

November 4, 2020HHS continues to revise its reporting requirements for the use of the Provider Relief Funds. Providers with more than $10,000 in Provider Relief Fund payments must report on the use of the funds through December 31, 2020. The reporting window will begin on January 15, 2021 and providers must complete reporting obligations for FY 2020 by February 15, 2021 through a portal designed by HHS. However, providers that have unexpended funds as of December 31, 2020, will have an additional 6 months to use the remaining funds through June 30, 2021. These providers must submit a second and final report no later than July 31, 2021.Client Alert

Should I Apply for Phase 3 Funds? Important Considerations Every Provider Should Know

November 2, 2020On October 1, 2020, the Department of Health and Human Services (“HHS”) announced an additional $20 billion in new funding for providers through a Phase 3 distribution. Importantly, providers that previously received HHS Provider Relief Funds or already received payments of approximately 2% of annual revenue from patient care are eligible to apply. Eligible providers have until November 6, 2020 to apply for these Phase 3 Funds. However, the question from providers continues to be: Should I Apply for Phase 3 Funds?Client Alert

CISA Ransomware Practices

October 29, 2020On October 28, 2020, the United States Cybersecurity and Infrastructure Security Agency (CISA) issued an alert warning of imminent threats to US hospitals and healthcare providers. The specific threat involves RYUK Ransomware attacks. RYUK is a novel ransomware that goes undetected by commercial anti-virus/malware detection programs. Once deployed, RYUK encrypts all data and disables systems. In short, it cripples all functionality down to phone systems and automated doors. Healthcare providers should alert their employees to remain hyper-vigilant and report any suspicious activity seen in email or on networks. It has been reported healthcare providers in New York, Pennsylvania and Oregon have been targeted in the last 48 hours. If your organization encounters issues, BMD can assist in mobilizing a response team and has contacts with forensic IT firms that are familiar with RYUK. It is advisable to engage professionals with experience dealing with this specific threat.Client Alert

HHS Announces an Additional $20 Billion In Provider Relief Grants

October 5, 2020The U.S. Department of Health and Human Services (“HHS”) announced an additional $20 billion in new funding for providers on October 1, 2020. Eligible providers include those that have already received Provider Relief Fund payments as well as previously ineligible providers, such as those who began practicing in 2020, and an expanded group of behavioral health providers confronting the emergence of increased mental health and substance use issues exacerbated by the pandemic. The new Phase 3 General Distribution is designed to balance an equitable payment of 2% of annual revenue from patient care for all applicants plus an add-on payment to account for revenue losses and expenses attributable to COVID-19.
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