While the PHE has been renewed have the 1134 waivers expired?

As a result of the continued consequences of COVID-19 pandemic, and following consultation with public health officials Xavier Becerra, secretary of U.S. Department of Health and Human Services, extended the public health emergency (PHE) for another 90 days.

In an official declaration, Becerra said that he was renewing the PHE originally declared by former Secretary Alex M. Azar January 31, 2020, which was renewed April, July and October of 2020, and subsequently extended in January, April, July and October of 2021.  The latest renewals came this year in January and April.

As expected, the COVID-19 PHE has been extended another 90-days, effective July 15, 2022. This means that most waivers under the 1135 CARES Act of 2020 will continue to stay in effect through this period, through October 12, 2022, while others are winding down.

The Centers for Medicare & Medicaid Services (CMS) has already alerted providers that many nursing home compliance standards have phased out, while still protecting those residents.

During the PHE, CMS used a combination of emergency waivers, 1135 regulations, and sub-regulatory guidance to offer healthcare providers the flexibility needed to respond to the COVID-19 pandemic. Also, check local and state waivers, as many states have let their state waivers expire when physicians are crossing state lines to see patients via telehealth.

An example is in Florida, where Emergency Order 20-002 and Emergency Order 20-003 related to COVID-19 expired on June 26, 2021. The expiration of these orders impacts the following services that were temporarily authorized in the state of Florida.

  • Out-of-state health care practitioners are no longer authorized to render services for patients in Florida unless they become licensed to practice in Florida, except as specified in the HHS Guidance Memorandum Dated 3/12/2021, regarding vaccine administration.
  • Out-of-state health care practitioners are no longer authorized to perform telehealth services for patients in Florida unless they become licensed or registered in Florida.
  • Qualified physicians are required to conduct an in-person physical examination to issue a physician certification for any patient.
  • Controlled substance prescribers are required to conduct an in-person physical examination to issue a renewal prescription for a controlled substance.

Many other states also let these EO’s/waivers expire. So physicians who are providing service via telehealth for patients, not in their home state, would have to be licensed in the state in which they are performing these services, or where the patient is located as well.

The good news is that access to certain services, primarily telehealth coverage, continues not only through Oct. 12, under the waiver 1135 flexibilities, but also with the Consolidated Appropriations Act of 2022 congressional extension, it will continue to be covered for 151 days after the PHE ends. But what does that mean exactly and are there any variables that need to be addressed?

Telehealth, in which patients are using their home as the originating site, will continue to be allowed to bill for office visits when an audio and video connection exists. Audio-only visits, when billed with telephone CPT codes, will continue for another 90 days as well, and behavioral health services, will need certain modifiers to reflect audio only in 2022.

Programming Note: Listen to Terry Fletcher when she reports this story live today during Talk Ten Tuesdays at 10 Eastern.

References:

https://aspr.hhs.gov/legal/PHE/Pages/covid19-15jul2022.aspx

https://www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicy-and-memos-states-and/update-covid-19-emergency-declaration-blanket-waivers-specific-providers

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