Health Law Monitor

The Consolidated Appropriations Act, 2022 (March 15, 2022) Provides Five-Month Reprieve for Telehealth Flexibility Upon the Expiration of the COVID-19 Public Health Emergency under 42 U.S.C 1395m(g)(1)(B)

March 18, 2022

By: Michael G. Erena

Since January 31, 2020, the federal government has been operating with robust authority to combat the COVID-19 pandemic based on the U.S. Secretary of Health and Human Service’s ongoing declaration of a “public health emergency” (PHE) under 42 U.S.C 1395m(g)(1)(B). Telehealth services have been ubiquitous throughout the pandemic, and the expanded grant of legislative authority under the PHE have allowed for broader, more flexible telehealth coverage during the pandemic. While the PHE has been continually renewed every 90 days for more than two years, the PHE is up for reconsideration on April 15, 2022. The Consolidated Appropriations Act, 2022 (the Act) was signed into law March 15, 2022 and provides some important, albeit very temporary ongoing flexibilities for telehealth once the PHE expires—whenever that may be.

Specifically, the Act affords a five-month sunset period for ongoing telehealth flexibility which is pegged to the expiration of the PHE. The telehealth provisions enumerated in the Act might forecast a growing consensus among lawmakers that, for better or worse, the PHE—and the fount of expansive legislative authority that comes with it—may soon expire. For practitioners and stakeholders in the telehealth market, the Act provides at least a brief reprieve to continue the broader telehealth services which have since become standard over the last two years. Notable telehealth expansions that will continue five-months beyond the PFE under the Act include: (1) telehealth services provided at an individual’s home; (2) telehealth services provided by occupational therapists, physical therapists, speech language pathologists, and audiologists; (3) audio-only telehealth; (4) delayed in-person visits to meet mental health requirements for telehealth; (5) extended flexibility for federally qualified health centers (FQHCs) and rural health clinics (RHCs) to serve as distant sites for telehealth; and (6) allowing coverage for telehealth services without plan members incurring costs, even before the plan members’ deductibles are met. The five-month extension of these telehealth programs beyond the PHE is by no means comprehensive or permanent, but it should provide some flexibility for providers, patients, and other stakeholders in the transition to the post-PHE world of telehealth.

Finally, in addition to extending the foregoing provisions beyond the PHE, the Act also authorizes and commissions a study to specifically examine the expansion of telehealth services in the post-PHE world. For practitioners and patients who have extolled the benefits of telehealth during the pandemic, this study may signal a favorable future for expanded telehealth coverage going forward.