March 20, 2023

World War II, which began on September 1, 1939, raged in Europe for nearly 6 years, ravaging ancient cities and decimating much of the population.  It officially ended on May 8, 1945, known in the West as VE (victory in Europe) Day.  But months before the German surrender, the leaders of the principal allied nations were already meeting to plan out the post-war world.  The great ordeal that had burst upon the European continent was finally winding down, and the time had come to look to the future.

In many ways, the American people have recently endured a different kind of ordeal.  For three years, the nation and its health facilities have been operating under a government-imposed public health emergency (PHE).  The PHE was first announced on January 30, 2020 in response to the outbreak of the coronavirus (COVID-19).  This meant the waiving of many health-related rules and the adding of certain regulatory flexibilities to help combat the emergency.  That emergency, however, is now coming to an end—at least officially.

End of an Era

A few weeks ago, the Biden Administration announced that the PHE associated with COVID-19 will terminate on May 11, 2023.  The timing of the announcement is tied to the administration’s promise to give the Congress significant prior notice regarding its intent to end the PHE.  Accordingly, that intention was officially provided.  Ostensibly, the reason for the policy change was the view among administration officials that the worst of the pandemic is now behind us.  According to a statement released by the U.S. Department of Health and Human Services (HHS):

We are in a better place in our response than we were three years ago, and we can transition away from the emergency phase.

The agency also noted that, since the peak of the omicron variant at the end of January 2022, daily reported COVID cases were down 92 percent, and deaths and hospitalizations have both declined by approximately 80 percent.

With the passing of the PHE, many of the pandemic-era policies will also come to an end.  According to HHS, pandemic-era waivers concerning health system operations and care access, such as those concerning excess hospital capacity amid surges of COVID-19 cases, will be rescinded.  In addition, healthcare providers’ ability to prescribe controlled substances via telehealth without an in-person visit is currently set to come to an end.  (However, the DEA is planning to initiate rulemaking that would extend these flexibilities under certain circumstances and will soon provide additional guidance to practitioners.)  Below, we have provided other ramifications of the PHE’s expiration that may impact many of our readers.

CRNA Supervision Rule

The Centers for Medicare and Medicaid Services (CMS) had, during the PHE, waived the federal Conditions of Participation (CoP) requirement that a CRNA must perform services under the supervision of a physician.  Instead, such supervision has been at the discretion of the hospital or ambulatory surgical center (ASC) and state law, during the PHE. 

According to a February 27 Fact Sheet released by CMS, the CoP supervision waiver relative to CRNAs will come to an end on May 11, 2023.  However, states still retain the right to opt out of the requirement based on the standards set forth in a CMS final rule that was published on November 13, 2001 (66 FR 56762).  Consequently, unless you are in an opt-out state, you will need to ensure that any CRNAs you may have within your group practice are able to be under the supervision of either an anesthesiologist who is immediately available or the physician/surgeon who is in the room with the CRNA, beginning May 11.

Other Supervision Changes

For chronic pain physicians or for those anesthesia groups that maintain a chronic pain component, the CMS Fact Sheet, referenced above, contains important information that may impact your current practice.  However, this would only be the case where your practice makes use of telehealth technology.

You’ll recall that CMS temporarily changed the definition of “direct supervision” during the PHE to allow a supervising healthcare professional to be immediately available through virtual presence using real-time audio/video technology instead of requiring their physical presence. This temporary exception also applied to the provision of telehealth services by clinical staff “incident to” the professional services of physicians and other practitioners.  The big news is that this flexibility will expire on December 31, 2023.  This will give chronic pain providers plenty of time to work out the necessary changes in their practice parameters.

Staying the Course

While some of the PHE-era flexibilities are going away, others will continue—at least for a while longer.  For example, the aforementioned CMS Fact Sheet explains that the Consolidated Appropriations Act of 2023 extended many telehealth flexibilities through December 31, 2024, such as:

• People with Medicare can access telehealth services in any geographic area in the United States, rather than only those in rural areas.
• People with Medicare can stay in their homes for telehealth visits that Medicare pays for rather than traveling to a health care facility.
• Certain telehealth visits can be delivered audio-only (such as a telephone) if someone is unable to use both audio and video, such as a smartphone or computer.

For Medicaid and CHIP, telehealth flexibilities are not tied to the end of the PHE and were offered by many state Medicaid programs long before the pandemic. Coverage will ultimately vary by state.  For more information on what the ending of the PHE will mean for telehealth services, see https://telehealth.hhs.gov/providers/policy-changes-during-the-covid-19-public-health-emergency/. 

CMS has prepared a “roadmap” for the winding down of the PHE.  It provides a fuller listing of many PHE-era flexibilities that will end and those that will continue.  You can access it at https://www.hhs.gov/about/news/2023/02/09/fact-sheet-covid-19-public-health-emergency-transition-roadmap.html.  If you have questions regarding the PHE expiration, please contact your account executive or reach out to us at info@anesthesiallc.com.

With best wishes, 

Tony Mira
Vice Chairman & Founder