The COVID-19 public health emergency has required a swift and monumental response across several federal agencies and Congress. Through a combination of emergency powers, federal agencies have collectively issued over 600 temporary flexibilities and regulatory changes intended to bolster the U.S. response to the pandemic.
With respect to the Department of Health and Human Services (HHS), many of the deregulatory measures issued thus far have been effectuated via section 1135 waiver authority. Section 1135 waivers allow the Secretary to temporarily modify or waive certain Medicare, Medicaid, Children’s Health Insurance Program (CHIP) and Health Insurance Portability and Accountability Act (HIPAA) requirements during a public health emergency (PHE).
On May 19, 2020, President Donald Trump signed an Executive Order (EO) intended to spur economic recovery following the pandemic-related shutdowns of local economies. The EO directs federal agencies to identify which, if any, temporary flexibilities extended during the PHE could be made permanent to support economic recovery. Federal agencies are required to send any identified flexibilities to the Office of Management and Budget, the Assistant to the President for Domestic Health Policy, and the Assistant to the President for Economic Policy, though no due date was included.
Many stakeholders see this development as an opportunity to influence the national dialogue on the temporary health care flexibilities implemented in response to COVID-19 that ought to be made permanent. Among such flexibilities, health care stakeholders have especially homed in on the vast array of sweeping Medicare telehealth flexibilities as principle among flexibilities that should be made permanent.
In light of this opportunity, Wynne Health Group developed the this resource to aid organizations in identifying which telehealth-related flexibilities under Medicare may be made permanent pursuant to the President’s EO; which precise legislative or regulatory changes would be required to do so; which stakeholders are already aligned on these issues; and, where there may be existing support in Congress.
Overall, this resource demonstrates there is extensive support for making several Medicare telehealth flexibilities permanent, including those pertaining to Medicare’s statutory originating and geographic site restrictions, newly eligible telehealth services, and waivers for audio-only technology.