In response to the COVID-19 pandemic, the Centers for Medicare & Medicaid Services (CMS) issued almost 200 "blanket" waivers which automatically apply to health care providers including hospitals, other healthcare facilities, and healthcare professionals. These blanket waivers are effective through the duration of the federal Public Health Emergency (PHE) declared by the Secretary of the US Department of Health and Human Services (HHS), which has been extended for 90-day periods since the onset of the pandemic and is currently extended through April 16, 2022. While HHS has not given any indication of an end date for the PHE, HHS has stated that it will provide at least 60 days' notice prior to such date.
While a significant number of the blanket waivers are likely to expire along with the expiration of the PHE (e.g., those relating to provider licensing and enrollment and the suspension of enforcement activities), there is a likelihood that some of the changes made by blanket waivers will continue in effect past the end of the PHE, either temporarily through extended expiration dates or permanently through new laws. Specifically, there are reasons to believe many of the telehealth waivers are here to stay. CMS has already finalized one rule expanding Medicare coverage for some telehealth services. States too, such as Illinois and Arkansas, have codified certain telehealth waivers the states initially put in place at the onset of the pandemic (e.g., waivers allowing telehealth services to be provided to a patient in any setting and by any licensed health care provider ). More so, prominent health care associations have urged both Congress and CMS to pass laws codifying many of the telehealth blanket waivers, as well as to continue to exercise enforcement discretion during a period of transition for those blanket waivers that will expire. Just last month (Feb. 2022), Congress introduced legislation that would extend certain Drug Enforcement Administration telehealth prescribing waivers for an additional two years following the end of the PHE. These actions show that both lawmakers and health care industry stakeholders believe that the increased access to telehealth services provided by these waivers will continue to benefit patients beyond the scope of the pandemic.
There has also been a push by stakeholders to extend or make permanent certain non-telehealth blanket waivers also aimed at increasing access to health care. These waivers include, for example, expanding accessibility to hospital at home programs by suspending the requirements that nursing services be provided on premises at all times, modifying scope of practice limitations on nurse practitioners to be no more restrictive than what is allowed under state law, and allowing rural hospitals to increase bed capacity when an emergency requires such action.
While health care organizations should start making plans for the end of the PHE and the blanket waivers that came along with it, they also have reason to be cautiously optimistic that at least some of the CMS blanket telehealth waivers, and perhaps other CMS blanket waivers, will continue past the end of the PHE.
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