What it means for providers.
May 2023 – The Journal of Healthcare Contracting
The federal Public Health Emergency (PHE) for COVID-19 expired this spring. Initially set to expire May 11, it was moved up to mid-April. “We are in a better place in our response than we were three years ago, and we can transition away from the emergency phase,” declared the Department of Health and Human Services in February. The following are some of the changes likely to affect providers.
“Telehealth has caused the most angst among our members,” says Claire Ernst, director of government affairs, Medical Group Management Association.
During the PHE, individuals with Medicare had broad access to telehealth services, including in their homes, without the geographic or location limits that usually apply. The good news for the medical community is that Congress extended many PHE-related telehealth flexibilities through December 31, 2024, including:
- People with Medicare can access telehealth services in any geographic area in the United States, not just rural areas.
- People with Medicare can stay in their homes for telehealth visits rather than traveling to a healthcare facility.
- Audio-only visits will be offered to those who are unable to use both audio and video (e.g. smartphone or computer).
“Telehealth services became a game changer in both rural and urban areas throughout the country,” says Kelly Ladd, CEO, Piedmont Internal Medicine, Atlanta. Prior to the PHE, only rural areas could provide and receive payment for these services. But that has changed, she says.
“Many of our senior citizens – including those in urban settings – do not feel comfortable going out in bad weather to go to the doctor. Telehealth allows them to engage with their provider for chronic care and even acute illnesses. It is especially helpful because it allows us to see the patient through video so we can make certain assessments. If the patient does not have video capabilities, we can still hear their voice, assess background noises, and have the personal engagement.”
Many practices have taken the time and expense to incorporate telehealth into their workflow, and they are hoping their investment won’t be cancelled with the expiration of COVID-era telehealth flexibilities, she says. “What CMS fails to realize is that providers must pay for the technology to provide these services and follow the same workflow as traditional office visits. We still must complete patient registration, review the patient chart, generate claims for payment and process those payments.” In addition, practices have had to adjust their IT networks to add additional cybersecurity and adhere to HIPAA policies and procedures to ensure patient health information laws are followed.
An Illinois State Medical Society survey found that of the 81% of its physician members who reported using telemedicine, three-quarters had not done so prior to the start of the pandemic, says the Society’s president-elect, Rodney S. Alford, M.D. “The flexibilities that were instituted at the federal and state level created a pathway for physicians to incorporate telemedicine into their practices.”
Reimbursement an issue
Prior to the pandemic, among the most significant barriers to telemedicine was the fact that many payers, including Medicare, had restrictive reimbursement policies, says Dr. Alford. Illinois has already taken action to permanently retain many of the emergency flexibilities that applied to state-regulated health plans. Further, in-network healthcare professionals or facilities in the state must be reimbursed for telemedicine encounters at the same reimbursement rate that would apply to services delivered via an in-person encounter, at least through 2027.
Claire Ernst believes that eliminating payment parity for telemedicine and in-person visits, as CMS plans to do January 2024, could present challenges for MGMA’s physician-practice members. “There’s a large differential – as much as 30% – between tele visits and in-person visits, given the technology needed and workflow accommodations that must be made,” she says. “We’ll be looking at CMS’s proposed Physician Fee Schedule, probably in July, to see if they address that.”
Compliance with HIPAA rules presents another telemedicine challenge for practices. During the pandemic, HHS’s Office for Civil Rights relaxed enforcement of some HIPAA-related requirements, including the use of HIPAA-compliant telemedicine platforms, she says. That will probably change in May. Smaller practices may be more adversely affected than big ones, as they conduct fewer telehealth visits and are less likely to use HIPAA-compliant platforms, she says.
Another telehealth-related issue to watch is interstate licensure for Medicare patients, says Ernst. During the pandemic, qualified clinicians were allowed to provide telemedicine services to patients in states other than their own, provided the other state did not object. That could change.
In addition, questions have been raised about reimbursement for audio-only telemedicine services. The American College of Physicians is pleased that CMS is extending coverage of audio-only E/M services until at least December 2024, says Shari Erickson, chief advocacy officer and senior vice president of governmental affairs and public policy. Researchers have begun to identify the positive impact on health equity of audio-only E/M services, she says.
But regardless of what Medicare does, not all private payers will necessarily follow suit. “Many have stopped payment for these services altogether over the past year, if they covered them at all during the worst of the pandemic,” says Erickson. “And those that cover them may or may not be paying at the same rate as CMS. From a practice perspective, this makes for a very inconsistent experience and creates uncertainty as to if or how much physicians will be paid for offering audio-only services to their patients.”
Remote patient monitoring
The end of the PHE also means changes for remote physiologic monitoring, or RPM. During the PHE, CMS permitted clinicians to bill for remote physiologic monitoring services furnished to both new and established patients, and to patients with both acute and chronic conditions. When the PHE ends, clinicians must once again have an established relationship with the patient prior to providing RPM services.
Piedmont Internal Medicine implemented remote patient monitoring and chronic care management services three years ago, says Kelly Ladd. “They have had a significant and positive impact on patient care” and have kept patients out of the Emergency Room, hospital admissions and readmissions. Blood pressure monitoring, pulse oximeter readings and glucometer-reading devices transmit information directly to software, which is monitored on a daily basis by nurses, she says. RPM facilitates patients’ engagement between the patient and the physician’s care RN/team on a regular basis, she adds.
The end of the Public Health Emergency coincides with the U.S. government’s plan to transition the provision of COVID-19 vaccines and treatments to the traditional healthcare marketplace. In a statement, the Department of Health and Human Services said the transition is not tied to the ending of the COVID-19 PHE, but rather reflects the fact that the federal government has not received additional funds from Congress to continue to purchase more vaccines and treatments.
When this transition occurs, many Americans will continue to get free COVID-19 vaccines, according to HHS. Vaccines recommended by the Advisory Committee on Immunization Practices (ACIP) are a preventive health service for most private insurance plans and will be fully covered without a co-pay. Currently, COVID-19 vaccinations are covered under Medicare Part B without cost sharing, and this will continue. Medicaid will continue to cover all COVID-19 vaccinations without a co-pay or cost-sharing through September 30, 2024, and will cover ACIP-recommended vaccines for most beneficiaries thereafter.
“A top priority for family physicians and the AAFP [American Academy of Family Physicians] is to ensure patients have continuous healthcare coverage and ongoing access to comprehensive care once the PHE ends,” says Tochi Iroku-Malize, M.D., president of AAFP. “Transitioning COVID-19 vaccines to the commercial market may create financial and operational challenges for physician practices and could negatively impact access to and utilization of COVID-19 vaccines for patients.
“If the price of the vaccines is too high, physician practices may struggle to make the upfront investment in COVID-19 vaccines,” she says. “Additionally, patients often prefer to receive vaccine counseling and administration from their usual source of primary care, such as their family physician. As the PHE unwinds, the administration and Congress must work to ensure appropriate COVID-19 vaccine prices and payment rates to enable trusted physicians to offer vaccines, promote vaccine confidence, and bolster vaccination rates.”
Says Kelly Ladd, “Insurance carriers have not set their reimbursement fees, so we don’t know how much we are going to be paid yet for the vaccine.” And that amount will probably differ depending on the payer. What’s more, payers tend to update their fee schedule quarterly, she says. “The problem is, we typically don’t receive this information until the quarter is more than halfway through. We are not able to make an informed decision on which vaccine brand to choose.”
Providers fear the end of the Public Health Emergency (PHE) will mean the loss of Medicaid coverage for millions of people. Through its “continuous enrollment provision,” the federal government during the PHE required state Medicaid agencies to provide coverage even if an individual’s eligibility changed. (Before the PHE, individuals could be cut from the program for failure to report a change in family status or income.) Consequently, enrollment for Medicaid and the Children’s Health Insurance Program (CHIP) increased by 20.2 million people from enrollment in February 2020, the Kaiser Family Foundation found.
Expiration of the continuous enrollment provision means that 17.4% of Medicaid and CHIP enrollees – approximately 15 million individuals – will probably lose Medicaid coverage, according to the Assistant Secretary for Planning and Evaluation of the U.S. Department of Health and Human Services. Children and young adults will be impacted disproportionately, with 5.3 million children and 4.7 million adults ages 18-34 predicted to lose Medicaid/CHIP coverage. Nearly one-third of those predicted to lose coverage are Latino (4.6 million) and 15% (2.2 million) are Black.
Certain states may be hit particularly hard. Nevada’s enrollment in Medicaid and CHIP rose 47% during the pandemic, according to Kaiser Health News. Many signed up toward the start of the pandemic, when the state’s unemployment rate spiked to nearly 30%.
Approximately 25% of Illinois citizens are enrolled in Medicaid under Illinois’ current rules, says Rodney S. Alford, M.D., president-elect of the Illinois State Medical Society. “The continuous coverage provision has provided much-needed stability to patients who rely on the program to get healthcare services and has helped ensure that physicians who accept Medicaid patients can trust that their enrollment status is current. Illinois State Medical Society members are wary of the unavoidable disruption that will be caused when the redetermination process is resumed after more than three years of continuous eligibility.”
The American College of Physicians supports additional options to prevent coverage gaps, including creating the option for Exchanges to adjust special enrollment periods for people who have Medicaid and Children’s Health Insurance Plan coverage, says Shari Erickson, chief advocacy officer and senior vice president of governmental affairs and public policy. “We also have been urging CMS to encourage state Medicaid agencies to engage with Medicaid-participating physicians, particularly practices with an above-average share of Medicaid-enrolled patients, to help spread awareness of the post-Public Health Emergency coverage transition.” ACP also supports enabling states to extend postpartum Medicaid coverage for a full year.
People enrolled in the Supplemental Nutrition Assistance Program (SNAP) are already feeling the impact of the end of the PHE. The program provides nutrition benefits to supplement the food budgets of needy families. During the PHE, the federal government issued “Emergency Allotments” of $95/month or more to households getting SNAP benefits. But effective March 1, regular SNAP rules were reinstated. This could ultimately affect more than 41 million Americans, according to Axios.
“The American College of Physicians has called for SNAP benefit levels to be increased and the benefit calculation formula regularly adjusted to better reflect the rising costs of nutrient-dense food and other competing expenses,” says Erickson. Many studies have found that SNAP significantly reduced food insecurity for participants, improved health outcomes, reduced healthcare expenditures, lowered nursing home and hospital admission rates, and lowered cost-related medication nonadherence compared with nonbeneficiaries, she says.
The physician self-referral law, also known as the “Stark Law,” does two things: 1) It generally prohibits a physician from making referrals for certain designated health services payable by Medicare to an entity with which he or she (or an immediate family member) has a financial relationship; and 2) it prohibits the entity from filing claims with Medicare for any improperly referred designated health services. On March 30, 2020, CMS issued blanket waivers of certain provisions of the law so long as they were related to the COVID-19 emergency.
When the COVID-19 PHE ends, those waivers will terminate, and physicians and entities must immediately comply with all provisions of the Stark Law. That will entail some recordkeeping on their part.
“Clinicians who took advantage of the blanket waivers must make available to CMS, upon request, records relating to the use of the waivers,” says Shari Erickson. “This means that clinicians should be maintaining separate documentation for their arrangements that justifies the purpose and scope of the arrangement. From a clinician standpoint, it can be burdensome to review all arrangements entered under the Stark Law waiver. It is also unsettling that there is uncertainty as to whether CMS will audit and ask for proof of compliant documentation under the waiver. This will distract physicians’ focus from caring for what is most important – the patient.”
As the government returns to a stricter approach to enforcing Stark, medical practices may experience some backlash from their patients. By law, providers are required to attempt to collect Medicare deductibles and co-insurance amounts from their patients, says Kelly Ladd, CEO, Piedmont Internal Medicine, Atlanta. Failure to do so could amount to enticement, a violation of Stark. During the pandemic, practices slowed down their collection efforts with little or no interference from CMS. But last July, CMS in a memo required physician practices to resume vigorous collection efforts. Piedmont complied, “but patients have been complaining because they had not received a bill before this past summer,” says Ladd.
Providers have a few other issues to address as the PHE ends, according to those with whom JHC spoke. They include:
- Notification of shortages of critical devices.
- Issues surrounding physician prescribing of controlled substances.
- Staffing issues.
When the PHE ends, the U.S. Food and Drug Administration’s ability to detect early shortages of critical devices related to COVID-19 could be limited, says HHS. During the PHE, manufacturers of certain devices related to the diagnosis and treatment of COVID-19 were required to notify the FDA of manufacturing discontinuances or interruptions. That requirement could end, though the FDA at press time was seeking congressional authorization to extend it.
Telemedicine and controlled substances
Throughout the PHE, the government waived provisions of the 2009 Ryan Haight Act, which requires a practitioner to have conducted at least one in-person medical evaluation of a patient before issuing a prescription for a controlled substance.
“The American Academy of Family Physicians has long urged Congress and the administration to remove barriers for physicians prescribing medication for opioid use disorder, and applauded SAMHSA [the Substance Abuse and Mental Health Services Administration of HHS] and DEA [Drug Enforcement Agency] for temporarily waiving certain restrictions during the PHE,” says AAFP President Tochi Iroku-Malize, M.D.. At press time, AAFP was preparing comments on proposed rules regarding permanent telehealth flexibilities after the PHE ends. Those rules would create new limited options for telemedicine prescribing of controlled substances without a prior in-person exam.
“There is a lot of concern among MGMA members who started treating patients during the pandemic,” says Claire Ernst, director of government affairs, Medical Group Management Association. “Now they are back to in-person visits. The proposed rules didn’t go as far as we wanted. There are still a lot of roadblocks for people who need those medications and for prescribers.”
Healthcare providers throughout the country are still facing staffing shortages among physicians, mid-level providers RNs, medical assistants and front office and billing personnel says Ladd. “It has been very difficult to recruit, hire, and retain employees post-COVID shutdown.”
Those issues are expected to continue after the PHE ends.
One question about staffing involves the supervision of residents. “Family physicians have emphasized that COVID flexibilities impacting the supervision of resident physicians have improved beneficiary access and medical training, particularly the expansion of the primary care exception,” says Dr. Iroku-Malize. During the PHE, CMS expanded the codes that were billable under the primary care exception, meaning that residents could provide more services without the presence of a supervising physician during the visit if the supervising physician was overseeing the care and discussing it before and after visits. AAFP is advocating for the permanent expansion of the Medicare primary care exception, she says.