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PA COVID-19 Regulatory Waivers Scheduled to Expire on September 30, 2021

On June 10, 2021, the Pennsylvania legislature voted to end Pennsylvania’s COVID-19 emergency disaster declaration, which had been in effect since March 6, 2020.  The vote would have also terminated the hundreds of COVID-19 regulatory waivers authorized under the emergency disaster declaration, but a last minute deal resulted in a bill extending the regulatory waivers until September 30, 2021.  

The extension is intended to allow patients and health care providers to gradually transition back to “normal.” Nevertheless, the impending termination of the regulatory waivers creates uncertainty for health care providers. For example, one of the most significant of the regulatory waivers for Pennsylvania providers has been the waiver authorizing licensed health care professionals to provide services via telemedicine during the coronavirus emergency. This waiver was critical at the beginning of the pandemic, given the absence of any existing statute or regulation authorizing Pennsylvania licensed health care providers to provide services via telemedicine. The waiver also authorized health care providers licensed in other states to provide services via telemedicine in Pennsylvania without obtaining a Pennsylvania license, as long as the health care provider submitted certain basic information to the relevant Pennsylvania licensing board, including proof of licensure and good standing in their home state, and certain demographic information.  

Without the waiver in place, Pennsylvania health care providers will return to the pre-COVID state of affairs, where there was no express authorization by statute, or from the Board of Medicine or other applicable professional board, authorizing provision of services via telemedicine. Continuing to provide services via telemedicine without such authorization poses a licensure risk to health care providers and the institutions that employ them.  

The Pennsylvania legislature last attempted to pass a telemedicine law in the spring of 2020, but it was vetoed by Governor Wolf because it failed to require private insurers to reimburse telemedicine visits at the same rate as in-person visits, and did not cover services related to the prescription of mifepristone, a medication that terminates early pregnancies. In the spring of 2021, new telemedicine bills – H.B. 642 and S.B. 705 - were introduced in the Pennsylvania legislature. These bills address some, but not all, of Governor Wolf’s concerns: both bills omit the provisions that Governor Wolf objected to on the basis of reproductive rights, but neither bill requires parity of insurance coverage for telehealth. On the federal level, the Protecting Access to Post-COVID-19 Telehealth Act was reintroduced in the U.S. House of Representatives on January 19, 2021.  The Act would eliminate most geographic and originating site restrictions on the use of telehealth in Medicare, and establish the patient’s home as an eligible distant site.  It does not, however, address interstate licensing issues. Other similar federal bills, such as the Protecting Rural Telehealth Access Act and the CONNECT for Health Act, have also been introduced. Ultimately, until new legislation is passed authorizing telemedicine and removing limitations on payment, the expiration of the Pennsylvania COVID-19 regulatory waivers is likely to create a gap between the expectations of the public and heath care providers about the possibilities of telemedicine, and reality.  

It is clear that COVID-19 created a transformational moment for telehealth. According to a recent McKinsey study, 58% of physicians view telehealth more favorably than they did before the pandemic, with particularly high uptake in psychiatry and substance abuse treatment.1 Use of telehealth has increased 38-fold from the pre-COVID baseline. In light of the continued consumer demand, there is strong incentive for legislative relief in this area between now and late September.2 But, in light of the September 30, 2021 expiration of the Pennsylvania COVID-19 waivers, health care providers and institutions should consult with counsel to be sure that their policies, procedures, and practices stay current with the evolving regulatory landscape. We will continue to post updates as they occur.  

Footnotes:

1 See Oleg Bestsennyy, Greg Gilbert, Alex Harris, and Jennifer Rost, Telehealth: A quarter-trillion-dollar post COVID-19 reality? McKinsey & Company (July 9, 2021), available at https://www.mckinsey.com/industries/healthcare-systems-and-services/our-insights/telehealth-a-quarter-trillion-dollar-post-covid-19-reality (last visited July 13, 2021). 
 2 Id. 

Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.

About the Author

Elizabeth M. Hein is a Principal in the Firm’s Health Care Practice Group, providing legal services to the Firm’s health care clients in litigation, regulatory, and compliance matters.

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