Current PHE Could be the Last – Here’s Why

As expected, the PHE was extended for another 90 days.

The COVID-19 PHE (public health emergency) was extended another 90 days, effective April 16. This means that most waivers under the 1135 Coronavirus Aid, Relief, and Economic Security (CARES) Act waivers will continue to stay in effect through this period, while others are winding down.

The Centers for Medicare & Medicaid Services (CMS) has already alerted providers that many nursing home compliance standards will phase out, while residents continue to be protected. This extension also allows millions of people to keep getting free tests, vaccines, and treatments for at least three more months.

The PHE was initially declared in January 2020, when the coronavirus pandemic began. It has been renewed each quarter since. This will make it nine renewals in all, and with over 75 percent of the over-65 population now vaccinated, and clear protocols for treatment, this could be the last time U.S. Department of Health and Human Services (HHS) Secretary Xavier Becerra extends it, policy experts have said.

HHS said in a statement that it was extending the PHE and that it will make every effort to give states 60 days’ notice prior to termination or expiration. When the PHE expires, insured people will be subject to co-pays or other costs, while the uninsured will lose easy access to free testing.

Millions of people could also lose Medicaid coverage, as states reinstate stricter enrollment rules that they had loosened in order to qualify for enhanced federal funding.

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. CMS is ending specific waivers to two groups: one will end 30 days from the issuance of the new guidance, and the other group will terminate 60 days from issuance.

For the first group, to name a few, these emergency declaration blanket waivers are ending for skilled nursing facilities/nursing facilities (SNFs/NFs) within 30 days:

• Resident Groups – 42 CFR §483.10(f)(5): CMS waived the requirements ensuring that residents can participate in-person in resident groups. This waiver permitted each facility to restrict in-person meetings during the COVID-19 PHE;
   
• Physician Visits – 42 CFR §483.30(c)(3): CMS waived the requirement that all required physician visits (not already exempted in §483.30(c)(4) must be made by the physician personally. The waiver modified this provision to permit physicians to delegate any required physician to visit a nurse practitioner, physician assistant, or clinical nurse specialist who is not an employee of the facility, who is working in collaboration with a physician, and who is licensed by the state and performing within the state’s scope-of-practice laws (what this means is that in 30 days, SNF and NF visits are mandated to be physician encounters again);
   
• Physician visits in SNFs/NFs – 42 CFR §483.30: CMS waived the requirement for physicians and non-physician practitioners to perform in-person visits for nursing home residents and allow visits to be conducted, as appropriate, via telehealth options (in other words, within 30 days, each patient encounter will need to be in-person, but safety measures for protection are still recommended); and
  
  
• Clinical Records – 42 CFR §483.10(g)(2)(ii): CMS modified the requirement requiring long-term care (LTC) facilities to provide a resident a copy of their records within two working days (when requested by the resident).
  
  

For the second group,  to name a few, these emergency declaration blanket waivers are ending for various provider types within 60 days:

Physical Environment for SNF/NFs – 42 CFR §483.90:

• Outside Windows and Doors for Inpatient Hospice, ICF/IIDs and SFNs/NFs – 42 CFR §§418.110(d)(6), 483.470(e)(1)(i), and 483.90(a)(7): CMS waived the requirement to have an outside window or outside door in every sleeping room. This permitted spaces not normally used for patient care to be utilized for patient care and quarantine;
  
  
• In-Service Training for LTC facilities – 42 CFR §483.95(g)(1): CMS modified the nurse aide training requirements for SNFs and NFs, which required the nursing assistant to receive at least 12 hours of in-service training annually; and
  
  
• Training and Certification of Nurse Aides for SNF/NFs – 42 CFR §483.35(d) (Modification and Conditional Termination): CMS waived the requirements requiring that a SNF and NF may not employ anyone for longer than four months unless they met the training and certification requirements under §483.35(d). We remind states that all nurse aides, including those hired under the above blanket waiver at 42 CFR §483.35(d), must complete a state approved Nurse Aide Competency Evaluation Program (NATCEP) to become a certified nurse aide.
  
  

These are a few of the waivers set to expire, so it is the SNF and LTC facilities’ responsibility to know all the waivers and their dates of expiration.

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

Telehealth with the patient using their home as the originating site will continue to be allowed when billing for office visits, if an audio and video connection exists. Audio-only visits billed with telephone CPT® codes will continue for another 90 days as well.

However, there was a new PHE fact sheet that was published on April 7 that addressed some compliance issues that were not addressed earlier during the PHE, and this could be problematic for many physician practices.

Question 5 asked: can Medicare fee-for-service rules regarding physician state licensure be waived in an emergency?

Answer: The HHS Secretary has authorized 1135 waivers that allow CMS to waive the Medicare requirement that a physician or non-physician practitioner must be licensed in the state in which s/he is practicing for individuals for whom the following four conditions are met: 1) the physician or non-physician practitioner must be enrolled as such in the Medicare program; 2) the physician or non-physician practitioner must possess a valid license to practice in the state, which relates to his or her Medicare enrollment; 3) the physician or non-physician practitioner is furnishing services – whether in person or via telehealth – in a state in which the emergency is occurring in order to contribute to relief efforts in his or her professional capacity; and 4) the physician or non-physician practitioner is not affirmatively excluded from practice in the state or any other state that is part of the 1135 emergency area.

Such 1135 waivers, when granted by CMS, do not have the effect of waiving state or local licensure requirements, or any requirement specified by the state or a local government, as a condition. Those requirements would continue to apply unless waived by the state or local government. Therefore, in order for the physician or non-physician practitioner to avail himself or herself of the 1135 waiver under the conditions described above, the state also would have to waive its licensure requirements, either individually or categorically, for the type of practice for which the physician or non-physician practitioner is licensed in his or her home state.

Many practices made assumptions that if CMS and Medicare said you can do it, that this was a blanket waiver for all states and all payors. Not true.

Question 10 asked: Does a PHE declaration waive or preempt state licensing requirements for healthcare providers? 

Answer: No, a PHE declaration does not waive or preempt state licensing requirements. States determine whether and under what circumstances a non-federal healthcare provider is authorized to provide services in the state without state licensure … when the Secretary issues an 1135 waiver, the Secretary may waive Medicare, Medicaid, or CHIP (Children’s Health Insurance Program) requirements that physicians and other healthcare professionals hold licenses in the state in which they provide services. This would be for Medicare, Medicaid, or CHIP reimbursement purposes only, and would apply only if the physicians or other healthcare providers have an equivalent license from another state (and are not affirmatively barred from practice in any state in the emergency area).

Again, these clarifications were made for the PHE, but not included in the COVID-19 FAQ sheets. This may be confusing for some practices, as again, assumptions were made when things were not clear. I would strongly urge physicians who treated patients during the PHE, especially via telehealth in other states, to check with their personal liability insurance coverage and their healthcare attorney to make sure no infractions of the rules occurred. Also, any retired physicians that were allowed, again, under the COVID-19 waivers, to come out of retirement and see patients via telehealth, should check if they continue to be covered in their states, when many state PHE waivers have expired.

Program Note: Listen to Terry Fletcher report this story live today during Talk Ten Tuesdays, 10 Eastern.

To find out more about the extension of the telehealth flexibilities and what payers are continuing to allow to be billed under these PHE rules, register now to attend a live ICD10monitor educational webcast, “Telehealth Tune-Up” April 26, 2022.