HHS: How the End of the PHE Will Impact Telehealth Flexibilities

Today marks the end of the COVID-19 public health emergency (PHE), bringing changes to telehealth flexibilities enacted amid the pandemic.

On May 11, the Department for Health and Human Services (HHS) released a factsheet detailing telehealth-related regulations that will and will not change. For instance, Congress has extended certain telehealth flexibilities within the Medicare program through Dec. 31, 2024, via the Consolidated Appropriations Act, 2023. These include waivers that allow patients to participate in telehealth visits from their homes and coverage of audio-only visits.

But virtual care flexibilities related to HIPAA and behavioral healthcare will see some shifts. In 2020, the HHS Office for Civil Rights stated it would use its enforcement discretion and not impose penalties for HIPAA noncompliance against covered healthcare providers. This included providers using remote monitoring technology.

Last month, the OCR announced that this enforcement discretion would expire at 11:59 p.m. on May 11 due to the end of the PHE. There will be a transition period of 90 days for covered healthcare providers to ensure that their telehealth and remote monitoring operations are HIPAA compliant. The transition period will end at 11:59 p.m. on Aug. 9.

Similarly, telehealth flexibilities enacted by the HHS Substance Abuse and Mental Health Services Administration (SAMHSA) will sunset over the next year. For example, the agency had lifted the requirement that opioid treatment programs must perform an in-person physical evaluation for any patient who will be treated with buprenorphine if an authorized healthcare professional determines that the evaluation can take place via telehealth. This flexibility has been extended by a year to May 11, 2024. 

Further, during the PHE, SAMHSA allowed states to request exceptions for stable opioid treatment program patients to receive a 28-day take-home supply of their opioid use disorder (OUD) medication and for less stable patients to receive a 14-day take-home supply.

An April 2023 guidance provides updated rules that tie unsupervised take-home doses of methadone to time in treatment, which will remain in effect for the next year. Patients in their first 14 days of treatment may take home seven unsupervised doses of methadone, while those in treatment for more than 31 days may take home 28 doses.

The Drug Enforcement Agency (DEA) has also updated its rules surrounding the virtual prescribing of controlled substances. Though the agency had intended to end the flexibility allowing providers to prescribe controlled substances, like Adderall and Oxycodone, without a prior in-person medical examination when the PHE expired, it recently backtracked after healthcare stakeholders voiced their concerns. Earlier this week, a temporary rule was issued that extends the waiver through November 2023.

At the state level, Medicaid and the Children's Health Insurance Program (CHIP) can decide which telehealth services are covered and will remain so now that the PHE has ended. Additionally, private health insurers' coverage of telehealth and remote care will vary depending on the plan post-PHE.

Telebehavioral health licensure will also vary. Numerous states entered into compacts during the PHE, which allow providers to submit one application to practice in all participating states, including via telehealth. HHS stated that it had tripled its support to the Federation of State Medical Boards and the Association of State and Provincial Psychology Boards, which created several compacts, including the Interstate Medical Licensure Compact and the Psychology Interjurisdictional Compact. It has also created a new licensure resource, which shares the latest information on licensing across state lines, licensure compacts, and more.

The end of the PHE and related changes to telehealth regulations come as telehealth use wanes across the country.

A recent FAIR Health report shows a 6.8 percent drop in telehealth use nationally from January to February. In the Midwest, South, West, and Northeast, telehealth use dropped by 8.7 percent, 8.3 percent, 6.2 percent, and 1.5 percent, respectively, in the same period.