Major waivers impacting PM&R that have expired:
Three-Hour Rule
DURING PHE, the Coronavirus Aid, Relief and Economic Security (CARES) Act includes a requirement that the Centers for Medicare and Medicaid Services (CMS) waive the “three-hour rule” for Inpatient Rehabilitation Facilities (IRFs). Prior to the PHE, IRFs were required to use an “intensity of therapy” standard to assess whether patients were appropriate for admission to an IRF. This equated into a requirement that beneficiaries participate in at least three hours per day (or 15 hours per week) of skilled rehabilitation therapy.
AFTER PHE, with no action from CMS or Congress, this waiver will terminate.
60 Percent Rule
DURING PHE, CMS has allowed IRFs to exclude patients who are solely admitted “to respond to the emergency” (i.e., patients admitted as acute care overflow patients, etc.) from their population for purposes of calculating the 60 percent threshold.
AFTER PHE,
- Freestanding rehabilitation hospitals and rehabilitation units of acute care hospitals must have at least 60 percent of their patients admitted annually under 13 qualifying conditions in order to qualify for reimbursement under the IRF prospective payment system (PPS).
- Rehabilitation patients will no longer be permitted to receive care from acute care beds.
Face-to-Face IRF Visits
DURING PHE, physicians were able to use telehealth modalities to fulfill the requirement to conduct face-to-face visits at least three days a week for the duration of a Medicare Part A fee-for-service (FFS) patient’s stay in an IRF.
AFTER PHE, rehabilitation physicians will be required to resume face-to-face visits at least three times per week for IRF patients.
IRF Interdisciplinary Team Meetings
DURING PHE, the requirement that IRFs were to hold in-person weekly interdisciplinary team meetings to discuss Medicare Part A FFS patients was waived. CMS allowed IRFs to conduct their meetings electronically.
AFTER PHE, IRFs will be expected to hold in-person, weekly interdisciplinary meetings. CMS has announced that rehabilitation physicians may lead these meetings remotely using video, telephone conferencing or other technology linked here.
Three-Day Prior Hospitalization
DURING PHE, CMS temporarily waived the requirement for a three-day prior hospitalization for coverage of a Skilled Nursing Facility (SNF) stay. The waiver ensured temporary emergency coverage of SNF services without a qualifying hospital stay The waiver also allowed for certain beneficiaries who exhausted their SNF benefits to be authorized a one-time renewed SNF coverage without first having to start and complete a 60-day “wellness period” (60-day period of non-inpatient status that is normally required to end the current benefit period and renew SNF benefits).
AFTER PHE, this waiver will terminate.
Expanded Ability for Hospitals to Offer Long-term Care Services
DURING PHE, waivers have allowed for hospitals that provide long-term care services to utilize swing beds to accommodate patients not receiving acute care—and who otherwise qualify for SNF placement—but are unsuccessful in finding such a placement.
AFTER PHE, these waivers will terminate.
Pre-Admission Screening (PAS) and Annual Resident Review (PASRR)
DURING PHE, the PAS and PASARR were no longer a requirement for SNFs. CMS has permitted nursing homes to admit new residents and conduct level one screening post-admission. Under this waiver, nursing homes should refer new residents with intellectual disability or mental illness to the state PASARR programing for level two review.
AFTER PHE, these waivers will terminate.
HIPAA Enforcement Discretion
DURING PHE, Medicare-covered providers were able to use any non-public facing application to communicate with patients without risking any federal penalties, even if the application wasn’t in compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
AFTER PHE, the HHS Office of Civil Rights (OCR) issued guidance clarifying how providers may use remote communication technologies for audio-only telehealth. OCR is providing a 90-calendar day transition period, beginning May 12, 2023 and expiring on August 9, 2023, for covered health care providers to come into compliance with the HIPAA Rules with respect to their provision of telehealth.
Major waivers impacting PM&R that have been temporarily extended include:
Telehealth
DURING PHE, all beneficiaries across the country have been able to receive Medicare telehealth and other communications technology-based services wherever they are located.
AFTER PHE, The Consolidated Appropriations Act (CAA), 2023, extended many telehealth flexibilities through December 31, 2024 including:
- Medicare beneficiaries can access telehealth services in any geographic area in the United States, rather than only those in rural areas.
- Medicare beneficiaries can stay in their homes for telehealth visits that Medicare pays for rather than traveling to a health care facility.
- Certain telehealth visits can be delivered audio-only (such as a telephone) if someone is unable to use both audio and video, such as a smartphone or computer.
In addition, The Drug Enforcement Agency (DEA) and Health and Human Services (HHS) jointly announced a secondary temporary extension allowing telehealth flexibilities for the prescription of controlled substances:
- The full set of telemedicine flexibilities regarding prescription of controlled medications as were in place during the COVID-19 PHE will remain in place through December 31, 2024.
- Additionally, this extension authorizes all DEA-registered practitioners to prescribe schedule II–V controlled medications via telemedicine through December 31, 2024, whether or not the patient and practitioner established a telemedicine relationship on or before November 11, 2023. In other words, the grace period provided in the first temporary rule is effectively subsumed by this second temporary rule, which continues the extension of the current flexibilities for all practitioner-patient relationships—not just those established on or before November 11, 2023—until the end of 2024.
For Medicaid and Children's Health Insurance Program (CHIP), telehealth flexibilities are not tied to the end of the PHE and have been offered by many state Medicaid programs long before the pandemic. For private insurance plans, Coverage for telehealth and other remote care services will vary after the end of the PHE.
DISCLAIMER: This is not a comprehensive list of all waivers and flexibilities tied to the COVID-19 pandemic. Please find a handful of resources below for further information on which waivers or flexibilities have already terminated, are permanent, or is expected to end.