Public Health Emergency Ends May 11th; Flexibilities Set to End, Some Temporarily Extended

On May 9, 2023, the United States Drug Enforcement Administration (DEA) and the Substance Abuse and Mental Health Services Administration (SAMHSA) officially issued "Temporary Extension of COVID-19 Telemedicine Flexibilities for Prescription of Controlled Substances", a temporary rule that extends telemedicine flexibilities adopted during the COVID-19 Public Health Emergency (PHE).

The temporary rule will take effect on May 11, 2023, the same date the COVID-19 PHE is set to end and when the telemedicine flexibilities contained within would have ended, had this new temporary rule not been issued. The temporary rule will be in effect for six months, through November 11, 2023.

For any practitioner-patient telemedicine relationships that have been, or will be, established, up to November 11, 2023, the full set of telemedicine flexibilities regarding prescription of controlled medications established during the COVID-19 PHE will be extended for one year, through November 11, 2024.

DEA Administrator Anne Milgram was quoted in a SAMHSA press announcement saying, "The DEA received a record 38,000 comments on its proposed telemedicine rules. We take those comments seriously and are considering them carefully . . . We recognize the importance of telemedicine in providing Americans with access to needed medications, and we have decided to extend the current flexibilities for six months while we work to find a way forward to give Americans that access with appropriate safeguards."

Miriam E. Delphin-Rittmon, Department of Health and Human Services (HHS) Assistant Secretary for Mental Health and Substance use, and the leader of SAMHSA, was also quoted, saying, "Access to evidence-based treatment is a pillar of the HHS Overdose Prevention Strategy . . . We strongly support policies that promote access to effective and safe treatment for opioid use disorder, including through telemedicine platforms, and ensuring continued access to necessary controlled medications past the COVID-PHE."

Click here to access the full text of the temporary rule, and click here to access the relevant SAMHSA press announcement.

Separate from the DEA and SAMHSA's temporary rule issuance, the New Jersey Department of Human Services (DHS), Division of Medical Assistance and Health Services (DMAHS) has issued a notice regarding PHE flexibility termination.

As stated in the notice from DMAHS, the following PHE flexibilities are set to expire tomorrow, May 11, 2023, the set end of the federal COVID-19 PHE:

Prior Authorization

• Medicaid/NJ FamilyCare will no longer suspend Medicaid fee-for-service prior authorization requirements. Prior authorization procedures will resume after this date.
• Medicaid/NJ FamilyCare will no longer extend pre-existing authorizations for which beneficiaries previously received prior authorizations through the end of the PHE.

Settings Requirements

• Medicaid/NJ FamilyCare will no longer allow for the provision of Services in Alternative Settings.
• Medicaid/NJ FamilyCare will no longer waive Home and Community Based Services (HCBS) Settings Requirements for Specified Settings.

HCBS

• Medicaid/NJ FamilyCare will once again require beneficiaries and providers' signatures on HCBS Person-Centered Service Plans.
• Medicaid/NJ FamilyCare will transition to regular Level of Care Determinations and Redetermination Timelines.

Long-Term Care

• Medicaid/NJ FamilyCare will no longer suspend Pre-Admission Screening and Annual Resident Review (PASRR) Level I and Level II Assessments for 30 days.

Fair Hearings

• Medicaid/NJ FamilyCare will continue to allow longer timeframes in which to request fair hearings.

Provider Enrollment and Participation

• Medicaid/NJ FamilyCare will no longer allow temporary Provider Enrollment based on enrollment with another State Medicaid Agency (SMA).

Presumptive Eligibility

• Medicaid/NJ FamilyCare will no longer allow additional eligibility groups to be enrolled via presumptive eligibility.
• Medicaid/NJ FamilyCare will no longer allow two presumptive eligibility periods during a single 12-month window.

Mental Health

• Medicaid/NJ FamilyCare will no longer allow providers to reserve beds for youth in residential mental health treatment centers for more than 14 days.

Pharmacy

• Medicaid/NJ FamilyCare will no longer automatically allow the dispensing of 90-day supplies of maintenance medications or early prescription refills after the PHE ends. In addition, all signature requirements for pharmacy orders will be reinstated.

Personal Care Services

• Legally Responsible Individuals may no longer render Personal Care Services (PCS).
• Family members may no longer render PCS.

Click here to access the complete notice from DMAHS and for more detailed information on each of the flexibilities' ends.

Additionally, Kaiser Family Foundation has shared a timeline of end dates for key health-related flexibilities provided through COVID-19 emergency declarations, legislation, and other administrative actions, available here.