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The COVID-19 Public Health Emergency (“PHE”) that has been in effect for over three years is finally slated to end on May 11, 2023.[1] With the end of the PHE will come many changes for healthcare providers to be aware of; however, some changes may not come until much later.

For example, one of the major changes that came with the PHE was the expansion of coverage for telehealth services rendered to Medicare beneficiaries. These flexibilities are expected to remain in effect through December 31, 2024, thanks to the Consolidated Appropriations Act of 2023.[2]

Upcoming Changes:

However, there are still many changes that will be made following the end of the PHE on May 11. First, unless the Drug Enforcement Agency (“DEA”) implements rules stating otherwise, providers will no longer be able to prescribe controlled substances to patients without first performing an in-person evaluation.[3]

In addition, Medicare Part B beneficiaries, while they will still have coverage for laboratory-conducted COVID-19 tests without cost-sharing, they will no longer have access to free over-the-counter tests.[4] In addition, private insurers will no longer be required to cover tests without cost-sharing (for both over-the-counter and laboratory tests).[5]

Providers will also need to ensure that technology used to perform telemedicine services are HIPAA compliant following the end of the PHE.[6]

Lastly, following the PHE, hospitals treating patients diagnosed with COVID-19 will no longer receive a 20% increase in the Medicare payment rate, and the 3-day prior hospitalization requirement will no longer be waived for Medicare beneficiaries staying at skilled nursing facilities who are transferred for emergencies.[7]

What Will Not Change:

As briefly mentioned above, the Consolidated Appropriations Act of 2023 extended many of the PHE waivers through the end of 2024. Therefore, the following changes are expected to stick around:

1. Medicare beneficiaries in any geographic area can receive telehealth services, rather than beneficiaries living in rural areas only;
2. Beneficiaries can remain in their homes for telehealth visits reimbursed by Medicare, rather than needing to travel to a health care facility;
3. Telehealth visits can be delivered via smartphone in lieu of equipment with both audio and video capability;
4. An expanded list of Medicare-covered services can be provided via telehealth;
5. Federally qualified health centers and rural health clinics can provide telehealth services to Medicare beneficiaries (i.e., can be distant site providers), rather than limited to being an originating site provider for telehealth (i.e., where the beneficiary is located).[8]

In addition, certain waivers implemented by the Food and Drug Administration (“FDA”) will also not be affected by the end of the PHE, including the availability of emergency use authorizations (“EUA”) for COVID-19 tests and treatments.[9]

State Law:

As far as Medicaid, many states have implemented their own rules in terms of telehealth flexibilities, and are therefore state-specific.[10] Along the same lines, while some states have created their own waivers for provider licensure requirements, other states have tied the requirements to the PHE. Therefore, providers should be cognizant of state laws as well in terms of the validity of any waivers. 

Conclusion:

Please note that while this Client Alert addresses many of the upcoming changes as a result of the end of the PHE, not all changes are listed. Therefore, we strongly encourage providers to review any waivers they are operating under to see whether they are permanent, and if not, when they are expected to expire.

If you have any questions regarding the expiration of a specific waiver, or any of the above information, please contact BMD Healthcare Member Jeana Singleton or Attorney Rachel Stermer. Jeana can be reached at jmsingleton@bmdllc.com or (330) 253-2001. Rachel can be reached at rcstermer@bmdllc.com or (330) 253-2019. 

 

[1] Kaiser Family Foundation, What Happens When COVID-19 Emergency Declarations End? Implications for Coverage, Costs, and Access, https://www.kff.org/coronavirus-covid-19/issue-brief/what-happens-when-covid-19-emergency-declarations-end-implications-for-coverage-costs-and-access/#medicaid-coverage (Jan. 31, 2023).

[2] Id.

[3] Id.

[4] Department of Health and Human Services, Fact Sheet: COVID-19 Public Health Emergency Transition Roadmap, https://www.hhs.gov/about/news/2023/02/09/fact-sheet-covid-19-public-health-emergency-transition-roadmap.html (Feb. 8, 2023).

[5] Id.

[6] Kaiser Family Foundation.

[7] Id.

[8] Id.

[9] U.S. Food and Drug Administration, FAQs: What happens to EUAs when a public health emergency ends?, https://web.archive.org/web/20230131165732/https:/www.fda.gov/emergency-preparedness-and-response/mcm-legal-regulatory-and-policy-framework/faqs-what-happens-euas-when-public-health-emergency-ends (Jan. 31, 2023).

[10] Kaiser Family Foundation.