Home Health & Hospice Week

In contrast, home health agencies find no joy on therapist assessment front.

The ground is shifting under providers’ feet as the COVID-19 public health emergency ends, but hospices have a bit surer footing in at least one area.

On May 9, the federal Drug Enforcement Agency and HHS Substance Abuse and Mental Health Services Adminis­tration released a temporary rule, “Temporary Extension of COVID–19 Telemedicine Flexibilities for Prescription of Controlled Medications.” The rule “extends the full set of telemedicine flexibilities adopted during the COVID-19 public health emergency for six months — through November 11, 2023,” the DEA notes in a press release.

Plus: “For any practitioner-patient telemedicine relationships that have been or will be established on or before November 11, 2023, the full set of telemedicine flexibilities regarding prescription of controlled medications as were in place during the COVID–19 PHE will continue to be permitted via a one-year grace period through November 11, 2024,” adds the rule published in the May 10 Federal Register. “In other words, if a patient and a practitioner have established a telemedicine relationship on or before November 11, 2023, the same telemedicine flexibilities that have governed the relationship to that point are permitted until November 11, 2024,” the DEA and SAMHSA explain.

As a reminder, “the PHE telemedicine flexibilities authorize practitioners to prescribe schedule II-V controlled substances via audio-video telemedicine encounters, and schedule III-V narcotic-controlled medications approved by the Food and Drug Administration (FDA) for maintenance and withdrawal management treatment of opioid use disorder via audio-only telemedicine encounters, without requiring an in-person medical evaluation,” explains attorney Joelle Wilson with law firm Polsinelli.

The temp rule aims to “facilitate continuity of care for telemedicine relationships established … during the COVID-19 PHE,” the DEA and SAMSHA say in the rule. It also intends to “prevent backlogs with respect to in-person medical evaluations in the months shortly before and after the expiration of the COVID-19 PHE and ensure the availability of telemedicine for practitioners and patients that have come to rely on it.”

And the regulation should give providers and patients time to “prepare for the implementation of any future regulations” on the topic, as well as giving the DEA and SAMHSA time to “thoroughly review and respond to the 38,369 comments they received” on two proposed rules on the matter that they issued in February, the rule says.

Recap: Those rules “elicited widespread criticism,” Wilson notes in online legal analysis. They “would reinstate strict limitations on the virtual prescribing of controlled substances and would significantly roll back the in-person medical evaluation flexibilities extended during the PHE,” Wilson warns. (See more rule details in HHHW by AAPC, Vol. XXXII, No. 8.)

The National Association for Home Care & Hospice “is pleased to see this development,” the trade group says of the temp rule in its member newsletter. But NAHC “anxiously awaits the final rule,” it adds.

NAHC urges the DEA to “work with the many impacted stakeholders, before the … deadline, to develop a process to implement this proposed rule with due consideration of the many comments from prescribers and patients,” it says.

The proposed rules “are considerably different than the DEA’s current telemedicine flexibilities,” caution attorneys Christopher Eades, Todd Nova, and Mayo Alao with law firm Hall Render.

On one hand: “Providers relying on the current DEA telemedicine flexibilities can breathe a bit easier for the time being, as the temporary rule provides some much-needed clarity around the continued use of telemedicine to prescribe controlled substances as the PHE winds down,” Eades, Nova, and Alao note in online legal analysis.

On the other hand: “Providers should closely monitor for the DEA’s final rules, once they are issued,” the Hall Render lawyers advise. “The proposed final rules, while still subject to modification based upon the comments received, are vastly different than the current telemedicine flexibilities,” they say. Keeping on top of the rules will allow providers to “effectively prepare for these anticipated changes,” they conclude.

For its part, the DEA indicates it’s listening. “We take those comments seriously and are considering them carefully,” DEA Administrator Anne Milgram says in a release. “We recognize the importance of telemedicine in providing Americans with access to needed medications, and we have decided to extend the current flexibilities while we work to find a way forward to give Americans that access with appropriate safeguards.”

Note: The seven-page temporary rule is at www.govinfo. gov/content/pkg/FR-2023-05-10/pdf/2023-09936.pdf.