On January 30, the Biden Administration announced May 11, 2023, as the targeted end date for the national public health emergency (PHE) declarations implemented during the COVID-19 pandemic. This policy update will examine several of the health-related COVID-19 Federal Emergency Declarations and which flexibilities will end in May.

Coverage and Payment for COVID-19
Testing Changes 

Coverage for COVID-19 Vaccines and Tests: During the pandemic, Medicare, Medicaid, and CHIP enrollees, in addition to group health plans and individual health insurance plans, all received coverage for COVID vaccinations and testing without cost sharing. These cost-sharing changes will end once the PHE expires.

In-Office Dispensing Stark Statues Back in Effect  

Many physician groups and providers within LUGPA offer pharmaceutical dispensing services to their patients.

In-office dispensing (IOD) is generally permitted under exceptions to Stark Law regarding in-office ancillary services. Under this exception, IOD should be provided at the point of care, including pick-up, would disallow mailing of prescriptions. During the COVID-19 public health emergency, CMS suspended several of the Stark rules, which allowed greater flexibility to dispense pharmaceuticals in-office. The end of the PHE means that these waivers will expire. CMS recently released a Q&A on the ancillary services exception and reiterated that the IOD must be completed at the point of care.

It is also important to note that if the state you are operating in prohibits mailing of prescriptions, these laws supersede any exceptions by CMS to mail prescriptions.

The interpretation of Stark Law with respect to IOD is nuanced and controversial. LUGPA strongly believes that IOD is an important component of quality care and will continue to advocate for the ability of its member practices to provide this important service to their patients.

Federal Match Rates and Medicaid Coverage 

Medicaid Coverage and Federal Match Rates: During the PHE, states received a 6.2 percent increase in their regular federal matching rate (FMAP) if they met the following conditions:

• Cover COVID-19 testing and treatment, including vaccines and specialized equipment, without cost-sharing.
• Provide continuous enrollment. States cannot transfer enrollees to a more restrictive benefits package.
• States could not change their eligibility standards to stricter than those in effect on January 1, 2020.
• States cannot adopt higher premiums than those in effect on January 1, 2020.

As part of the Consolidated Appropriations Act (CAA), the continuous enrollment conditions were removed from the PHE requirements, and continuous enrollment will end on March 31, 2023. The enhanced federal funding was also affected by the CAA and will expire on December 31, 2023.

3-Day Prior Hospitalization Requirement:

In March 2022, the Centers for Medicare & Medicaid Services (CMS) waived the 3-day prior hospitalization requirement for skilled nursing facility (SNF) stays for Medicare beneficiaries who required a transfer due to a disaster or emergency.

In addition, beneficiaries who may have exhausted their SNF benefits could receive renewed SNF coverage without starting a new benefit period. This waiver will end with the end of the PHE.

Medicare Advantage Coverage: 

During the PHE, Medicare Advantage plans were required to cover services at out-of-network facilities that participate in Medicare, and only charge enrollees affected by the emergency at a rate no higher than they would face if they had received care at an in-network facility. According to new Medicare rules released in May 2022, this requirement will end 30 days after the end of the PHE.

COVID-19 Section 1115 and 1135 Waivers:

During the PHE, CMS allowed states to enact changes to their Medicare, Medicaid, and CHIP programs that ignored statutory or regulatory provisions in order to provide needed care to enrollees served by these programs in affected areas.

These changes were requested and granted through the Section 1115 and Section 1135 waiver processes. The waiver process gives the Secretary of Health and Human Services the authority to approve experimental or temporary changes to Medicare, Medicaid and CHIP programs in order to improve the program or respond to emergency situations.

The 1115 waivers will end 60 days after the end of the PHE. The 1135 waivers will end no later than the end of the PHE. The Kaiser Family Foundation has tracked these waivers on their website: Medicaid Emergency Authority Tracker.

Extension of Liability Immunity

During the PHE, the federal government extended liability immunity to additional providers to allow for improved delivery and access to care during the pandemic. This change allows providers like pharmacists to administer vaccines while enabling physicians, registered nurses, or practical nurses whose licenses expired within the past five years to provide vaccines in any state. Under the current rules, this extension should end on October 1, 2024.

Telehealth Coverage Expansion Extended
Past End of PHE

The rapid growth of telehealth and the public’s increasing acceptance of remote care has led lawmakers and CMS regulators to delay their expiration and examine their effectiveness in managing costs and expanding care. In March 2022, Congress extended several of the telehealth coverage expansions implemented during the pandemic, including:

• Expansion of Originating Sites: This expansion allowed Medicare beneficiaries to receive telehealth services from any location, most notably their homes.
• Expansion of Eligible Practitioners: This expansion allowed additional providers to provide telehealth service to Medicare beneficiaries previously prohibited from providing remote care, including physical therapists, occupational therapists, speech therapists, and audiologists.
• Expansion of Telehealth Services and Reimbursement to FQHCs and RHCs: This expansion allows Federally Qualified Health Centers and Rural Health Clinics to continue to be reimbursed by Medicare for providing telehealth services.
• Delay of Periodic In-Person Visit Requirement for Mental Health Services: This change delayed the implementation of an in-person visit requirement for mental health practitioners which stipulated that providers needed to see patients in person within six months before providing mental health services via telehealth. This requirement would expand to every 12 months after the initial visit thereafter until January 1, 2025.
• Expansion of Audio-Only Services: This expansion allows Medicare coverage of audio-only services, but only in situations that are deemed appropriate and necessary.

The Consolidated Appropriations Act (CAA), which was signed into law on December 31, 2022, extended many of the telehealth flexibilities authorized during the COVID-19 public health emergency through December 31, 2024. The CAA also requires the HHS Secretary to submit a report to Congress regarding the use of telehealth services by April 2026.

The telehealth extensions and HHS report could indicate that Congress, CMS, and HHS may be examining data to determine if the telehealth expansion work and could be permanently extended in future legislative or regulatory reforms.

Cross State Licensing

During the PHE, every state and Washington DC temporarily waived several aspects of state licensure requirements, allowing providers with equivalent licenses in other states to medicine via telehealth. The future status of these waivers differs by state. While some states linked their waivers to the federal PHE, others extended the waiver further or made the expansion permanent.

For more information, you can view the Federation of State Medical Board Tracking website here: https://www.fsmb.org/siteassets/advocacy/pdf/states-waiving-licensure-requirements-for-telehealth-in-response-to-covid-19.pdf

HIPAA Penalty Waivers

To expand the use of telehealth during the PHE, HHS waived potential penalties for HIPAA violations for providers that served patients in good faith using services like FaceTime or Skype. This waiver will end with the PHE in May.

Telemedicine for Controlled Substances

During the PHE, certain health care providers that were registered with the Drug Enforcement Agency were given an expanded ability to use telehealth to issue prescriptions for controlled substances to patients without an in-person evaluation, given the provider and patient meet certain conditions, which are outlined here. This expansion will end with the end of PHE in May, or earlier if the DEA chooses an earlier date.

CMS and LUGPA Provide Resources
on PHE Phase Out  

The Centers for Medicare & Medicaid Services collected resources online to help providers prepare for the end of the PHE. These resources are updated  to reflect any recent changes from CMS or Congress.

The CMS has created a CMS Emergencies Page including several resources providers can use when preparing for the end of the PHE:

• What Do I Need to Know? CMS Waivers, Flexibilities, and the Transition Forward from the COVID-19 Public Health Emergency https://www.cms.gov/files/document/what-do-i-need-know-cms-waivers-flexibilities-and-transition-forward-covid-19-public-health.pdf
• Provider-specific fact sheets on COVID-19 PHE waivers and flexibilities:
  https://www.cms.gov/coronavirus-waivers
• CMS 1135 Waiver / Flexibility Request and Inquiry Form: https://cmsqualitysupport.servicenowservices.com/cms_1135
• Acute Hospital At Home:
  https://qualitynet.cms.gov/acute-hospital-care-at-home
• Physicians and Other Clinicians: CMS Flexibilities to Fight COVID-19h https://www.cms.gov/files/document/physicians-and-other-clinicians-cms-flexibilities-fight-covid-19.pdf