Outpatient Psychiatric Oversight Law Changes on the Horizon

Two recent pieces of legislation will amend the Pennsylvania Health Care Facilities Act:  Senate Bill 818 concerning Ambulatory Surgery Centers (“ASCs”), which is on the Governor’s desk awaiting signature, and Act 30 of 2022 (House Bill 2401) concerning Home Health Agencies (“HHAs”), which was signed into law on June 30, 2022. Act 30 of 2022 also extended COVID-19 regulatory waivers. In addition, House Bill 2419, which will amend the Outpatient Psychiatric Oversight Act, is on the Governor’s Desk awaiting signature. Below is a summary of some key takeaways from each piece of legislation.

Senate Bill 818:

After circling the legislature since mid-2021, Senate Bill 818 amends the licensure law regarding ASCs. It adds Section 822 “Ambulatory Surgical Facility Permitted Procedures.” This Section provides for the following:

• Permits ASCs to perform surgical procedures set forth in the list published by the Centers for Medicare and Medicaid (“CMS”) dated January 1, 2022 (without requiring a waiver as described below); and
• Creates an exception or waiver process for ASCs to request permission from the Department of Health to perform procedures not in the CMS list or not otherwise permitted to be performed by state regulation.
• The exception process is outlined in SB 822:
  • There is a 60 day review process for the Department.
  • If the Department denies the request, it must explain the basis for denial.
  • If the Department cannot make a decision, it must set forth what it requires for the request to be approved.
  • If the Department does not provide a determination within 60 days, it is deemed approved.

Act 30 of 2022 (HB 2401):

• Act 30 of 2022 (HB 2401) authorizes physician assistants (“PAs”) and nurse practitioners (“NPs”) to order home health care services, consistent with the federal CARES Act that was signed into law on March 27, 2020, if the PA’s or NP’s collaborating or supervising physician is identified in the patient’s written plan of treatment.
• Per Act 30 of 2022 (HB 2401), the Department of Human Services (“DHS”) will submit a request for federal waivers/approvals for Medical Assistance (“MA”) programs to the federal government and upon receipt of necessary waivers/approvals, home health care services for MA eligible individuals may also be ordered by a PA or NP if the PA’s or NP’s collaborating or supervising physician is identified in the patient’s written plan of treatment.
• Within 30 days of issuance, an order of home health care services must be signed and dated by a physician, PA or NP.
• In addition, House Bill 2401 extended COVID-19 regulatory waivers until October 31, 2022, until the last day of the Federal Public Health Emergency or the last day the Federal exemptions are authorized, whichever is later, for Federal exemptions.

House Bill 2419:

• This legislation removes the statutory requirement for outpatient psychiatric clinics to have a psychiatrist provide 50% of onsite psychiatric time and allows for services to be provided through the use of tele-behavioral health technology.
• Required psychiatric time may be provided in person or by the use of tele-behavioral health technology by psychiatrists, as specified by DHS regulations.
• Advanced practice professionals may also provide a portion of the psychiatric time, as specified by DHS regulations, either in person or by the use of tele-behavioral health technology.