Practice Management Alert

Know which waivers will expire — and which are here to stay.

The COVID-19 public health emergency (PHE) has been a fact of life for years, but the Biden administration has announced an end date: May 11, 2023.

While some of the popular waivers have been made permanent, others are set to expire with the PHE. Make sure you have the knowledge you need to steer your practice post-PHE.

Try to Remember the Old Days

While the “new normal” has taken hold culturally for many people, the Centers for Medicare & Medicaid Services (CMS) is encouraging stakeholders to remember some aspects of life before the pandemic.

“CMS encourages health care providers to prepare for the end of these flexibilities as soon as possible and to begin moving forward to reestablishing previous health and safety standards and billing practices,” say Jonathan Blum, principal deputy administrator and chief operating officer at CMS; Carol Blackford, director hospital and ambulatory policy group at CMS; and Jean Moody-Williams, deputy director of the center for clinical standards and quality at CMS, in a CMS news release. You can read the release here, www.cms.gov/blog/creating-roadmap-end-covid-19-public-health-emergency.

Although many of the initial waivers were instituted by CMS, some features, including some telehealth expansions, are being made permanent by other means.

“Expanding telehealth is an example of a Congressional change. The Consolidated Appropriations Act, 2021 expanded access to telehealth services for the diagnosis, evaluation, or treatment of mental health disorders after the end of the PHE. These services have been so important to the health and well-being of Americans affected by COVID-19,” say CMS.

Other waivers, including some that provided leeway in some staff training requirements at nursing homes, will end, in hopes of better meeting residents’ physical, mental, and psychosocial needs, CMS says.

Know Which Flexibilities May Still Be in Play

CMS says it’s not trying to make things harder or less convenient for providers or patients — the agency is merely trying to ensure patients, especially Medicare beneficiaries, have certain protections in their healthcare encounters.

“We have routinely monitored data across the health care system to inform our overall approach on ending certain flexibilities, and are prioritizing the reinstatement of vital health and safety standards to protect people seeking care. As we assess ending flexibilities related to the PHE, CMS is continuously considering impacts on the communities we serve, including underserved communities, and the potential barriers and opportunities flexibilities may address,” they say.

Some aspects of care provision covered under the waivers, including some related to licensure, will defer to state law when the PHE ends. Depending on the respective state, providers may find they still have some flexibility when it comes to services they provide outside of their state of enrollment.

Similarly, regulations surrounding practitioner locations, and whether a practitioner could bill Medicare during a public emergency if practicing in a state in which they are not licensed, will defer to state law. In a fact sheet about Flexibilities to Fight COVID-19, CMS says, “We originally implemented the [aforementioned] waiver out of an abundance of caution; however, it turned out that regulations that existed before the PHE allowed for a deferral to state law.”

Acknowledge These Tightened Regulations

During the PHE, CMS allowed clinicians to bill for remote physiologic monitoring (RPM) services rendered for new or established patients for both acute and chronic conditions. Once the PHE ends, clinicians must have an established relationship with the patient prior to provide these services. Additionally, right now, the RPM process as described by CPT^® codes 99453 and 99454, allows clinicians to report those codes with only two days of data. Once the PHE ends, clinicians can report those code only if they have at least 16 days of data collected.

CMS made some adjustments to let practices and facilities acquire and maintain per sonnel during the PHE, and many of these flexibilities are ending with the PHE.

One example: During the PHE, CMS temporarily modified the requirement that a supervising physician be immediately available to also include circumstances where a supervising physician had a virtual presence via real-time audio and video technology. However, this Medicare flexibility will end with the PHE.

Executives also may have less leeway in staffing decisions. When the PHE ends, the waiver that allowed the chief medical officer or equivalent leader at a hospital or facility to make staffing decisions for furnishing or supervising certain services will end. The practitioner type or physician specialty required by the national coverage determinations (NCDs) and local coverage determinations (LCDs) will again apply.

“With this information in hand, we expect that the health care system can begin taking prudent action to prepare to return to normal operations and to wind down those flexibilities that are no longer critical in nature,” they say.