Update: Secretary Azar extended the declaration of public health emergency! Crisis averted! See the declaration here.

Old bridge extending overheadRemember March 2020? No, it wasn’t ten years ago — honestly! It was just, like, 9 months back. Let me recount for you some important things that happened then and have happened since.

Thing 1: Along with the rapid deployment of telehealth everywhere, there was a rollout of numerous special exceptions that would last for the duration of the COVID “Public Health Emergency”, or “COVID PHE.” The big exceptions we’re concerned about were relaxations of telehealth-related rules in Medicare and HIPAA enforcement.

Thing 2: The last time the COVID PHE got extended was in October of 2020. They extended it to January 20th, 2021. So the PHE is currently set to expire on January 21st, 2021. (Citation — for some reason, the declaration doesn’t specify that the renewal was for 90 days. I assure you it was, however.)

Thing 3: The time of writing is January 7th, 2021, and they haven’t extended the PHE yet. 

So, at this moment in which I am typing, there is no assurance that the COVID PHE will be extended beyond January 20th. Here are the two consequences we worry about should the PHE expire on the 21st:

Medicare Coverage Expansions

Most notably (by our standards), Medicare rules were temporarily updated to allow for phone sessions and to deliver telehealth to clients without the client having to travel to a hospital or clinic (e.g. you can see the client via teletherapy right in the facility where they live.) More info here.

This was a big deal. These temporary changes have helped our society and government learn a ton about how well teletherapy works and how it helps Medicare recipients. Notably, Congress is considering bills that would make some of these changes permanent.

NB: Most changes to medicaid depend on state-level public health emergencies, which are a completely separate beast. PHE.GOV has a more-than-thorough list of those here

As written, these changes will expire after January 20th if the COVID PHE is not extended. And we can be sure that the pending congressional legislation will not be passed until well after that point.

HIPAA Enforcement Discretion

The HIPAA People (aka the “OCR”) announced that, for the duration of the PHE, clinicians will be able to use a wide variety of communications platforms to perform telehealth without fear of HIPAA reprisal. See our writeup for details.

Many clinicians are still leaning on this exception in order to legally use non-HIPAA-friendly platforms like Apple Facetime, Skype, and most especially the free tier of Zoom.

If the PHE is not extended, all clinicians using non-HIPAA-friendly platforms for their telehealth sessions will be non-compliant with HIPAA.

If you would like to look at options for switching to a HIPAA-friendly video platform now, check out our list of videoconferencing reviews here.

Will the COVID PHE Be Extended??

Probably? Maybe?

If not for the current unrest at the federal level, I would all but assume that a renewal will be forthcoming. The end date, January 20th, is odd because it happens to be the day on which the executive branch administration switches over.

The incoming administration could certainly extend the COVID PHE after-the-fact and backdate the start of the extension to January 21st. In fact, my crystal ball seems somewhat sure that they are likely to do so, assuming an extension isn’t already made by the current administration before it leaves.

My crystal ball has been acting funny for the last year or so, though, so I can’t say for sure that relying on an extension of the PHE will be safe.

What About Cross-State Practice, Medicaid, and Things Like That?

Cross-state practice allowances are completely dependent on state-level orders and rulings. They may or may not be impacted by the federal COVID PHE.

While it will be difficult to keep up with those changes as state-level rules return to pre-COVID times, we will be doing our darnedest to update our 50-State Teletherapy Practice Rules Tool as quickly as we reasonably can. You can check that tool now for information on cross-state practice allowances both during COVID and outside of COVID.

Medicaid is also mostly dependent on state-level rulings. Temporary changes to Medicaid may also be impacted by the federal COVID PHE, however. You’ll have to look up the Medicaid rules your own state set for the COVID PHE to see if the looming deadline will impact you there.

Conclusions

Depending on your risk tolerance, you may or may not wish to make sure you’re using a HIPAA-friendly telehealth platform now. While switching platforms definitely has some logistical costs involved, there are many good options that may cost you very little money — or no extra money at all. Once again, here is our list of reviewed videoconferencing platforms.

For those providing care to Medicare clients, however, the problem is not so easy to solve. We will definitely keep our eyes and ears open to see what happens next in that arena.

Once again, my sense is that the COVID PHE will probably get renewed. If the times weren’t so “interesting,” I would even rely on it.


Protecting Clinical Boundaries and Your Practice on Social Media, an Ethical Approach

Join us as highly lauded social media ethics expert, Dr. Keely Kolmes, teaches about maintaining ethical professional boundaries in the highly porous world of social media.

April 30, 2021
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