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HHS Announces Continuing Telehealth Flexibilities Following the End of the COVID-19 PHE

On May 10, 2023, HHS announced that many telehealth and teleprescribing flexibilities will remain in place after the end of the COVID-19 Public Health Emergency (PHE) on May 11, 2023. Congress extended many telehealth flexibilities under the Medicare program through December 31, 2024, via the 2023 Consolidated Appropriations Act. The Drug Enforcement Agency (DEA) and HHS Substance Abuse and Mental Health Services Administration (SAMHSA) also extended behavioral telehealth and prescribing flexibilities through November 11, 2023, with some opioid flexibilities through May 11, 2024, pending the issuance of new final rules. HIPAA flexibilities have expired but will be phased out through a 90-day transition period.

Telehealth Coverage

Coverage for telehealth following the expiration of the PHE will vary by program and plan type.

  • Medicare. During the PHE, individuals with Medicare had broad access to telehealth services without the application of geographic or location limits as a result of Medicare telehealth waivers issued by the HHS Secretary. Through the 2023 Consolidated Appropriations Act, Congress extended many telehealth flexibilities for Medicare patients, including waiving geographic limitations for telehealth access, allowing patients to stay in their home for telehealth visits rather than traveling to a health care facility, and permitting some visits to be conducted via audio-only technology if the patient is unable to use both audio and video. These flexibilities are set to expire on December 31, 2024, but after the expiration, some Accountable Care Organizations (ACOs) may permit participating practitioners to offer telehealth services to patients without an in-person visit, regardless of where the patient lives.
  • Medicare Advantage. Medicare Advantage Organizations (MAOs) must cover, at a minimum, the telehealth benefits provided by Medicare. However, MAOs may offer additional flexibilities.
  • Medicaid and CHIP. Telehealth flexibilities under Medicaid and CHIP vary by state, and states continue to have great flexibility with respect to determining the scope of coverage. HHS is encouraging states to continue to cover Medicaid and CHIP services delivered via telehealth, and CMS published a State Medicaid & CHIP Telehealth Toolkit and a Supplement that identify policies that should be addressed by states to facilitate a broader adoption of telehealth.
  • Private Health Insurance. Telehealth flexibilities for private insurance plans varied by insurance plan during the PHE. The PHE’s conclusion will not change this variation between payors.

HIPAA Rules

HHS Office of Civil Rights (OCR) exercised enforcement discretion for providers using non-HIPAA compliant technologies for telehealth during the COVID-19 PHE. The discretion applied to telehealth provided for any reason, regardless of whether the telehealth service was related to the diagnosis and treatment of health conditions related to COVID–19. OCR announced that the enforcement discretion will expire with the PHE on May 11, 2023. OCR is providing a 90-calendar day transition period for covered health care providers to make any changes to their operating systems to ensure that telehealth is provided in a private and secure manner. OCR will exercise enforcement discretion and will not impose penalties on health care providers providing care in good faith during the transition period. The transition period will expire on August 9, 2023.

Tele-Behavioral Health and Prescribing

HHS also clarified a number of flexibilities specific to tele-behavioral health and prescribing of opioids.

  • Opioid Prescribing without In-Person Evaluation. SAMHSA and the DEA have extended flexibilities for Opioid Treatment Programs (OTPs) through May 11, 2024. OTPs are exempt from performing in-person physician evaluations for patients who will be treated with buprenophrine if a program physician, primary care physician, or authorized healthcare professional supervised by a program physician determines that an adequate evaluation of the patient can be accomplished via telehealth. SAMHSA has proposed to make this flexibility permanent.
  • Take Home Doses. In March 2020, SAMHSA issued an exemption to OTPs that allowed a state to request a “blanket exception” for stable patients in OTPs to receive twenty-eight days of take-home doses of the patient’s medication for opioid use disorder, and for less stable patients to receive fourteen days of a take-home dose if the OTP believes that the patient can safely handle it. OTPs, states, and stakeholders have reported increased treatment engagement and improved patient satisfaction with care as a result of this flexibility, with few incidents of misuse or mediation diversion. SAMHSA released new guidance in April 2023 that will be effective on the conclusion of the PHE, and will be effective through May 11, 2024, or until HHS publishes final rules revising 42 C.F.R. Part 8. States will need to affirmatively register for this exemption for the OTPs in the state to use it. SAMHSA has proposed to make this flexibility permanent.
  • Controlled Substance Prescribing via Telehealth. DEA and SAMHSA issued a temporary rule extending the controlled substance telemedicine flexibilities through November 11, 2023. Under this rule, practitioners who have established relationships with patients via telemedicine prior to November 11, 2023, may continue prescribing medications to these patients without an in-person medical evaluation regardless of whether the practitioner is registered with the DEA in the state in which the patient is located through November 11, 2024. DEA and SAMHSA plan to issue updated final rules regarding controlled medication prescribing via telehealth by November 11, 2023.
  • Behavioral Healthcare Provider License Portability. HHS expressed continued support for increased licensure portability, which enables health care professionals licensed in one state to practice health care in another state through a transfer, recognition, or issuance of a license with decreased limitations or restrictions. HHS recognized a continued shortage of behavioral health providers and encouraged states to take advantage of resources to support interstate licensure, and other licensing flexibilities.