Legal Update: Know your waivers

Q. What waivers related to the public health emergency do I need to keep track of? 

A. On April 15, 2021, the U.S. Department of Health and Human Services (HHS) extended the public health emergency (PHE) for another 90 days, meaning the PHE will last until at least July 19, 2021. This PHE is expected to continue through at least the end of 2021. This is important news to HME providers since numerous waivers and flexibilities will continue to remain in place at a federal level during the duration of the PHE. A brief overview of relevant HHS waivers includes the following: 

• Expansion of permitted telehealth services, including all professionals eligible to bill Medicare are now permitted to provide telehealth services and receive payment for same.

• Waiver of the in-person initial assessment requirements for home health agencies by permitting remote visits or record review.

• Allowing DME MACs to waive replacement requirements for lost, destroyed or irreparably damaged DME.

• Waiving licensure requirements for physicians providing Medicare services to out-of-state beneficiaries whether in-person or via telehealth.  (State law still applies.)

• Relaxation of various HIPAA requirements and enforcement actions that may be brought during the PHE.

Also relevant to HME providers is the NSC’s still-current waiver of DMEPOS supplier standards #9 and #30 related to maintenance of a primary business phone and hours of operation. The NSC has resumed normal site visits and enrollment criteria. 

Given the dynamic nature of the pandemic and the guidance coming from HHS, it is important to closely monitor HHS updates regarding emergency blanket waivers and the status of the PHE. The PHE can also affect certain state laws, such as the recently enacted law in Washington requiring insurers to pay providers a PPE-cost reimbursement for all in-person visits. 

Kelly T. Custer is a shareholder with the Health Care Group at Brown & Fortunato. Reach him at (806) 345-6343 or at kcuster@bf-law.com.