Upcoming Expiration of the Covid-19 Public Health Emergency Declaration

As most of you know, the Department of Health and Human Services recently announced its intent to end the Public Health Emergency (PHE) declarations for Covid-19 effective May 12, 2023.  Such declarations have existed since March 2020 and provided federal and state governments with the authority to waive or modify numerous healthcare laws and regulations. Among these were provisions circumscribing a range of issues from reimbursement to telehealth to HIPAA compliance to licensure to liability.

The expiration of the PHE has far-reaching implications for UVA Health providers.  Below you will find a non-exhaustive overview of what this means for all UVA Health providers.  As a caveat, we are not focusing on billing rules and regulations, which comprise a large portion of the changes, as the Medical Center and UPG are the appropriate entities to handle those issues.  You should know, however, that many reimbursement provisions that were adopted during the PHE either have been extended to a date beyond May 11, or have been statutorily enacted. Of course, if you have any questions or concerns, please call the Trust at (434) 296-2100.

HIPAA and Telehealth

During the PHE, the Office of Civil Rights (OCR), which is the primary entity charged with enforcing HIPAA laws, used its enforcement discretion and refrained from imposing penalties on providers for HIPAA-noncompliance in the good faith provision of telehealth services.  An example of what would have been considered non-compliance pre-Covid is a provider using FaceTime to see a patient.  During the PHE, this non-compliance was effectively waived by the OCR, as the HIPAA requirements regarding the use of public and non-public facing audio or video remote technologies were paused.

With the end of the PHE, OCR has stated that the HIPAA Privacy Rule does permit providers to use remote communication technologies to provide certain video and audio-only telehealth services, so long as they otherwise comply with the Privacy Rule.  In other words, providers may continue to offer video and telephone visits so long as the technologies comply with HIPAA.  Public-facing platforms like FaceTime and Facebook Live, however, do not comply with HIPAA and will be prohibited beginning May 11. The OCR’s lack of enforcement against providers and health systems that fail to have adequate Business Associate Agreements with these video and audio communications vendors will likewise cease with the expiration.

For purposes of UVA Health providers, here is a chart that helps outline what will and will not be permissible beginning May 12, 2023:

State Licensure

Most states have rolled back their PHE waivers.  In fact, according to the Federation of State Medical Boards, currently only four states have some type of PHE-related licensure waiver that would allow a provider to see a patient in that jurisdiction absent a medical license.  Practically speaking, if you are “practicing medicine” on a patient located in another state, then that state’s licensure laws will almost inevitably want you to be licensed in that state.  “Practicing medicine” is defined differently in each state, but generally speaking if you are prescribing, treating, or diagnosing a patient then you will be deemed “practicing medicine” for licensure purposes.  Twenty-one states now offer some form of a telemedicine license, and the application logistics and reduced costs make these limited licenses very attractive to providers.  If you have a patient population in another state, please consider registering for a telemedicine license.

Legal Liability

During the PHE there were a handful of immunities (mostly federal pursuant to the PREP Act) for providers engaged in certain testing, development, distribution, administration and use of medical services to treat Covid-19 patients.  However, these immunities were quite specific to certain Covid-19 activities, and as such were not broadly applied or really very helpful for the vast majority of physicians and other providers. With the expiration of the PHE, our opinion is things will not change much from a legal liability standpoint; all providers will continue to be judged on whether or not they acted reasonably and within the standard of care.