COVID-19 Prompts Regulation Rollbacks, And 3 May Have Lasting Effects For Health Care

At the beginning of 2017, the Trump Administration committed to reducing federal regulation and reining in regulatory costs. In fact, Executive Order 13771 was filed on January 20^th, 2017 to do just that. Since that time, there has been a significant amount of deregulation across policy arenas such as the environment, labor, and health care. However, the SARS-CoV-2 coronavirus has infiltrated the legislative and regulatory world – just as it has every other facet of life.

In response, the administration has targeted a number of previous regulations for rollback. Thus, the Brookings Institute, a research group in Washington, D.C., has added a COVID-19 filter to its Deregulatory Tracker, a real-time tracking system for “delays, repeals, new rules, notable guidance, and policy revocations.” As of April 30^th, the system has noted six COVID-related deregulations. Three are directly connected to the Centers for Medicare and Medicaid Services (CMS) and the Department of Health and Human Services (HHS). Three others are tied to accessing small business loans, the Federal Reserve, and environmental regulations. 

What makes this tracking system so important is that whether one supports or opposes the changes, all Americans have the right to know what is happening, and a right to participate in the process. This is no truer than when overnight changes are being made to people’s ability to access care. 

Based on the work of Brookings’ scholars and the Center for Regulation and Markets tracker, here is what you need to know about the three current rule changes impacting health, and what they might mean for a post-COVID-19 world:

1. Medicare Coverage For Telehealth: CMS published an emergency rule on April 6^th allowing for an increase in coverage of telehealth visits “for the duration of the public health emergency.” While the reimbursements for people talking with their doctors while at home is limited, the proverbial cat is out of the bag. People and doctors have been hesitant to embrace telehealth for a number of reasons, including lack of payment and privacy. But now that the method is becoming the norm, it’s likely that a number of patients and providers will want to continue having the option available. And further, that insurers and CMS will have to respond in kind. Likely finding a balance in the future for in-person and tele-care.  

2. HIPAA Telehealth Exemptions: Speaking of privacy, HHS announced that it will “not impose penalties for noncompliance with the regulatory requirements under the HIPAA rules against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency.”What this means is that while mediums such as Zoom and WhatsApp pose serious privacy risks, for the duration of the pandemic, these risks are considered worth it for patient care and safety. Given that HIPAA is considered woefully out of date by many in the health sector, the pandemic might be the catalyst needed to bring privacy and security issues in health, into the 21^st century.  

3. Homebound Instructions and Provisions: People who are instructed by their health provider to stay home can, for the duration of the pandemic, be considered “homebound,” and thus, qualify for Medicare coverage of certain services that are delivered to the home. Further, the “health provider” that can make a stay-at-home decision has been extended to include non-MDs such as nurse practitioners (NP) and physician’s assistants (PA). Although this is expected to return to “normal” once the COVID-19 crisis has abated, many hope that the added responsibilities of care for NPs and Pas will stick. These positions are often hamstrung by regulation and are proving that they can do much more than they have been allowed to.