Transition From PHE Waivers and Flexibilities

The declaration of the public health emergency (PHE) in response to the COVID-19 pandemic brought an onslaught of waivers and flexibilities enacted by the Centers for Medicare and Medicaid (CMS) for beneficiaries to increase access to care, reduce exposure, and ease provider burden.

In December 2022, the Consolidated Appropriations Act (CAA) was signed into law. The CAA carved out funding for the extension of some of the major telehealth waivers initiated during the PHE. Approximately one month later in January 2023, it was announced the intent to end the national emergency and corresponding public health emergency on May 11, 2023.

CMS has provided updates on waivers and flexibilities granted during the PHE, some of which are summarized below. This is not a comprehensive summary, review of all released materials is recommended: CMS PHE Fact Sheet, Waivers and Flexibilities, Physician and Other Clinician Flexibilities, Hospital and other Facility Flexibilities and CMS Emergency Page.

Medicare Telehealth

After the PHE ends on May 11, 2023, CMS will cease the modified process of adding services to the Medicare Telehealth Services List on a sub-regulatory basis and will resume consideration of changes to the List exclusively through notice and comment rulemaking.

Currently, PHE waivers allow for the use of audio-only equipment to furnish services described by the codes for audio-only telephone evaluation and management services, and behavioral health counseling and educational services. Medicare payment for the telephone evaluation and management visits (CPT codes 99441-99443) is equivalent to the Medicare payment for office/outpatient visits with established patients. Unless specified otherwise other services listed on the Medicare Telehealth Services List must be furnished using audio and video equipment permitting two-way, real-time interactive communication between the patient and distant site. After the PHE, the availability of the telehealth services that can be furnished using audio-only technology will extend through December 31, 2024, per the CAA. Payment equivalent to office/outpatient visits for telephone E/M visits, will be extended December 31, 2024, per the CAA. In the CY 2022 Physician Fee Schedule Rule, CMS revised regulations to permit the use of audio-only equipment for telehealth services furnished to patients in their homes under certain circumstances for purposes of diagnosis, evaluation, or treatment of a mental health disorder (including substance use disorder).

Currently, waivers expanded the types of health care professionals who can furnish distant site telehealth services to include all those who are eligible to bill Medicare for their professional services. As a result, practitioners such as physical therapists, occupational therapists, and speech language pathologists can use telehealth to provide many Medicare services. After the PHE, this flexibility will extend through December 31, 2024, per the CAA.

Currently, reporting Home Address: CMS allows practitioners to render telehealth services from their home without reporting their home address on their Medicare enrollment while continuing to bill from their currently enrolled location. After the PHE, the waiver will continue through December 31, 2023.

Currently, during the PHE many services were added to the Medicare Telehealth Services list, including, but not limited to:

  • Emergency Department Visits, Levels 1-5 (CPT codes 99281-99285)
  • Initial Nursing Facility Visits, All Levels (Low, Moderate, and High Complexity) and Nursing Facility Discharge Day Management (CPT codes 99304-99306; CPT codes 99315- 99316; HCPCS code G9685)
  • Cardiac Care Services (CPT codes 93797-93798, CPT code 93750)
  • Critical Care Services (CPT codes 99291-99292)
  • Radiation Treatment Management Services (CPT code 77427)
  • Telephone E/M (CPT codes 99441-99443)

After the PHE, these services will remain on the Medicare Telehealth Services List and will be available through the end of CY 2023. CMS states they will address updates to the Medicare Telehealth Services List for CY 2024 and beyond through their established processes as part of the CY 2024 Physician Fee Schedule proposed and final rules.

Workforce

Currently, CMS temporarily modified the regulatory definition of direct supervision, which requires the supervising physician or practitioner to be “immediately available” to furnish assistance and direction during the service, to include “virtual presence” of the supervising clinician through the use of realtime audio and video technology. After the PHE, this flexibility is currently set to return to pre-PHE rules on December 31, 2023.

Currently, Medicare Nonphysician Practitioners including Nurse practitioners (NPs), clinical nurse specialists (CNSs), certified nurse-midwives (CNMs), and physician assistants (PAs) were granted permission to supervise diagnostic tests as authorized under state law and licensure. These practitioners continue the required statutory relationships with supervising or collaborating physicians. After the PHE, in the CY 2021 PFS final rule, CMS made these flexibilities permanent and added certified registered nurse anesthetists (CRNAs) to the above list of nonphysician practitioners allowed to supervise diagnostic tests as authorized under state law and licensure.

Currently, CMS has waived the Medicare requirement that a physician or non-physician practitioner must be licensed in the state in which they are practicing if the physician or practitioner 1) is enrolled as such in the Medicare program, 2) has a valid license to practice in the state reflected in their Medicare enrollment, 3) 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) is not affirmatively excluded from practice in the state or any other state that is part of the section 1135 emergency area. This waiver does 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 for waiving its licensure requirements. In addition, CMS allows licensed physicians and other practitioners to bill Medicare for services provided outside of their state of enrollment. After the PHE, CMS originally implemented the 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. CMS has determined that, when the PHE ends, CMS regulations will continue to allow for a total deferral to state law. Thus, there is no CMS-based requirement that a provider must be licensed in its state of enrollment.

Currently, CMS has modified the 60-day limit to allow a physician or physical therapist to use the same substitute (locum) for the entire time he or she is unavailable to provide services during the COVID-19 emergency, plus an additional period of no more than 60 continuous days after the public health emergency expires. After the PHE, on the 61st day after the PHE ends (or earlier if desired), the regular physician or physical therapist must use a different substitute or return to work in his or her practice for at least one day in order to reset the 60-day clock. The modified timetable applies to both types of substitute billing arrangements under Medicare fee-for-service (i.e., reciprocal billing arrangements and fee-for-time compensation arrangements, formerly known as locum tenens).