In response to the COVID-19 pandemic, the Facilities for Medicare & Medicaid Companies (CMS) issued virtually 200 “blanket” waivers which robotically apply to well being care suppliers together with hospitals, different healthcare services, and healthcare professionals. These blanket waivers are efficient by means of the period of the federal Public Well being Emergency (PHE) declared by the Secretary of the US Division of Well being and Human Companies (HHS), which has been prolonged for 90-day intervals because the onset of the pandemic and is presently prolonged by means of April 16, 2022. Whereas HHS has not given any indication of an finish date for the PHE, HHS has acknowledged that it’ll present a minimum of 60 days’ discover previous to such date. 

Whereas a big variety of the blanket waivers are prone to expire together with the expiration of the PHE (e.g., these referring to supplier licensing and enrollment and the suspension of enforcement actions), there’s a chance that a number of the adjustments made by blanket waivers will proceed in impact previous the top of the PHE by means of new legal guidelines together with telehealth growth and the comfort of different legal guidelines.

Telehealth. See an summary of the related exercise concerning telehealth growth under:

• On March 15, 2022, President Biden signed a spending bundle into legislation which extends sure telehealth blanket waivers for 151 days after the top of the PHE. The prolonged waivers handle the next:
  • Increasing the originating web site definition to incorporate any web site at which the affected person is positioned;
  • Increasing the eligibility of sure healthcare services and suppliers to furnish telehealth providers;
  • Delaying the 6-month in-person necessities for furnishing psychological well being providers by means of telehealth;
  • Extending protection and cost for audio-only telehealth providers; and
  • Permitting the usage of telehealth providers to satisfy the face-to-face necessities for hospice care.
• We additionally posted a weblog in April 2021 that mentioned completely expanded Medicare protection for sure telehealth providers.
• States too, comparable to Illinois and Arkansas, have codified sure telehealth waivers initially put in place on the onset of the pandemic (e.g., waivers permitting telehealth providers to be offered to a affected person in any setting and by any licensed well being care supplier). 
• Outstanding well being care associations, together with the American Hospital Affiliation, have urged each Congress and CMS to cross legal guidelines and rules codifying most of the telehealth blanket waivers, in addition to to proceed to train enforcement discretion throughout a interval of transition for these blanket waivers that can expire.  
• Final month (Feb. 2022), Congress launched laws that might prolong sure Drug Enforcement Administration telehealth prescribing waivers for a further two years following the top of the PHE. 

These actions present that each lawmakers and well being care trade stakeholders imagine that the elevated entry to telehealth providers offered by these waivers will proceed to learn sufferers past the time-frame of the pandemic and supply some indicia that a minimum of a number of the telehealth waivers which had been prolonged for a further 151 days after the top of the PHE might grow to be everlasting.

Rest of different legal guidelines.  There has additionally been a push by stakeholders to increase or make everlasting sure non-telehealth blanket waivers additionally aimed toward growing entry to well being care. These waivers embody, for instance, increasing entry to hospital at house packages by suspending the necessities that nursing providers be offered on premises always, modifying scope of observe limitations on nurse practitioners to be no extra restrictive than what’s allowed beneath state legislation, and permitting rural hospitals to extend mattress capability when an emergency requires such motion. The federal laws signed yesterday prolonged the 340B eligibility exception for sure hospitals by means of the top of 2022, permitting hospitals that misplaced their 340B eligibility on account of a drop of their disproportionate share adjustment share because of COVID-19 to proceed to entry the 340B drug reductions. 

Whereas well being care organizations ought to begin planning for the top of the PHE and the blanket waivers that got here together with it, there’s motive to be cautiously optimistic that a minimum of a number of the CMS blanket telehealth waivers, and maybe different CMS blanket waivers, will proceed previous the top of the PHE or grow to be everlasting. 

Jennifer Pike and Raquel Boton are members of Thompson Coburn’s Well being Care group.