Health Law Scan

Legal Insights and Perspectives for the Healthcare Industry

Another year has come to pass, and it seems the federal Public Health Emergency (PHE) will remain in place for at least the next five months. Why? As the US Department of Health and Human Services (HHS) has continuously pledged throughout the COVID-19 pandemic, the federal government intends to give states and healthcare providers at least a 60-day notice before terminating the PHE, which has granted significant flexibilities for furnishing healthcare services covered by Medicare, including in the context of telehealth. That 60-day notice period for the current PHE expiration date came and went on November 12 with no word from Secretary Xavier Becerra that the federal government would seek to wind down PHE flexibilities at the start of 2023. As a result, the PHE in all likelihood will be extended for an additional 90 days in early January 2023, for a revised expiration date of April 11, 2023.

As we previously noted, the PHE extending into 2023 will have significant consequences, since several emergency provisions are keyed to the year in which the PHE expires (which will now be 2023 instead of 2022). Perhaps more importantly, the PHE extension affords Congress more time to consider passing legislation that would permanently implement many of the flexibilities HHS has offered over the course of the last nearly three years.

In the short term, the additional extension of the PHE may be welcome relief for healthcare providers. However, Congress’s inability to advance any type of permanent legislation has made it difficult for healthcare providers to undertake long-term strategy development, thereby stifling investment in digital health technologies and operations. As we further stretch the concept of an “emergency”—the “E” in PHE—providers remain in limbo.

While there are several pending bills that could offer more permanence on PHE flexibilities, including Medicare coverage of telehealth, providers should not expect any certainty until at least the spring. The midterm election did not meaningfully clarify if and when Congress may take up this issue (which actually enjoys significant bipartisan support).

Though the most likely scenario is that some form of a Medicare telehealth bill will be passed before the PHE expires, important issues such as coverage of telephone encounters and whether coverage is available for established patients only, but not new patients, remain uncertain. Therefore, providers thinking about adopting telehealth solutions should be careful in their working assumptions when planning large-scale investments.

Above all else, it is important to begin the process of understanding how the expiration of the PHE will impact operations, billing, and regulatory compliance in your organization.

Questions about telehealth programs, coverage, or compliance? Contact us for more information.