On January 30, 2023, the White House issued a statement that the Biden Administration will end the COVID-19 public health emergency on May 11, 2023. President Biden confirmed this event during the February 7, 2023, State of the Union Address. Consequently, this will impact flexibilities created to expand access to telemedicine during the COVID-19 public health emergency, with some going away, and others continuing on a permanent or semi-permanent basis.
Impact to End of PHE
The Consolidated Appropriations Act of 2023 continues many telehealth-related flexibilities for Medicare patients. Some of these flexibilities will be extended on a permanent basis and some on a temporary basis. Key permanent changes under the Consolidated Appropriations Act will include: (1) Federally Qualified Health Centers and Rural Health Clinics may serve as a distant site provider for behavioral/mental telehealth services; (2) There will be no geographic restrictions applicable to the originating site for behavioral/mental telehealth services. Medicare patients may, therefore, continue to receive behavioral/mental telehealth services in their home. Rural hospital emergency departments will also be accepted as an originating site; (3) Behavioral/mental telehealth services may be delivered using audio-only communication platforms.
However, temporary changes, i.e. those extended through December 31, 2024, will include: (1) Medicare patients may, in their home, receive telehealth services authorized in the Calendar Year 2023 Medicare Physician Fee Schedule; (2) An in-person visit within six months of an initial behavioral/mental telehealth service will not be required; (3) Telehealth services may be provided by a physical therapist, an occupational therapist, a speech language pathologist, or an audiologist.
Additionally, the Department of Health and Human Services Office for Civil Rights confirmed that it will roll back the HIPAA telehealth flexibilities established in the March 17, 2020, Notice of Enforcement Discretion. Following the conclusion of the COVID-19 public health emergency, the OCR will continue flexibilities for health care providers and health plans utilizing remote communication technologies for audio-only telehealth. For the most part, however, covered entities will be expected to return to pre-COVID-19 privacy measures related to telehealth use. This will require ensuring that telemedicine platforms are HIPAA-compliant, that telehealth practices meet the needs of disabled/non-English speaking patients, and that business associate agreements are in place with telemedicine platforms utilized by the covered entity.
Finally, the Department of Health & Human Services Office for Civil Rights, along with the Department of Justice Civil Rights Division, issued guidance mandating that covered entities ensure that telemedicine practices provide accessibility to individuals with disabilities, and to Limited English Proficient persons. Covered entities are expected to comport with this mandate, unless doing so would result in an undue financial or administrative burden, or a fundamental alteration of the health program. Covered entities must implement telemedicine practices that accommodate individuals who are disabled, including visually-impaired and hearing-impaired patients. Covered entities must also have HIPAA-compliant systems in place to secure interpreters for LEP persons.