COVID-19 PHE Renewed Through October

Prepare for PHE’s end as 10th extension is announced.

With COVID-19 cases on the rise, the feds have renewed the Public Health Emergency (PHE) for another 90 days. Health and Human Services Secretary Xavier Becerra signed a 10th extension of the COVID-19 public health emergency, effective July 15 and lasting through October.

The extension follows a recent rise in omicron variant cases,” notes attorney Jacob J. Harper with law firm Morgan Lewis. That’s good for providers because “federal legislation to maintain certain telehealth flexibilities on a semi-permanent basis has stalled in Congress,” Harper points out in online analysis.

“The extension of the PHE, while perhaps pushing off permanent adoption of a telehealth solution, will provide additional time for providers who have been relying on these flexibilities to continue to develop permanent policies and operational workflows as the industry moves into the ‘new normal,’” Harper continues.

“Continuation through October should come as a welcome development for healthcare providers,” praise attorneys Gayland O. Hethcoat II and Fernanda Sanchez Jara with law firm ArentFox Schiff. “For healthcare providers, the COVID-19 pandemic has been characterized by ongoing regulatory waivers and relaxed enforcement policies intended to ease the compliance burdens on the U.S. health delivery system as its front-line clinicians have responded to the virus,” Hethcoat and Sanchez Jara say in online analysis.

Will the COVID-19 PHE Ever End?

First, providers can probably count on the entire 90-day extension until Oct. 13, since the nine previous extensions have gone the full time. “While the federal government could end the PHE at any time, it has previously extended the PHE uniformly for 90-day periods, and there is little reason for it to change course or end the PHE in the middle of a 90-day period,” Harper points out.

Second, the Biden administration has repeatedly said it will provide 60 days’ notice before ending the PHE. “While the federal government could, from a legal perspective, forgo its pledge to states of a 60-day notice, it is unlikely that it would do so, given the potential chaos in the healthcare market that could ensue,” Harper expects.

In a May letter to Secretary Becerra, the American Hospital Association, the American Nurses Association, and other professional and health groups urged HHS to “maintain the … PHE until it is clear that the global pandemic has receded and the capabilities authorized by the PHE are no longer necessary. This will help prevent any future surges from threatening the health and safety of patients and the ability of health care professionals to care for them.”

The letter cites the rise in variant cases and urges the administration “to maintain the PHE until we experience an extended period of greater stability and, guided by science and data, can safely unwind the resulting flexibilities.”

The AHA and other groups do acknowledge that “Americans are frustrated with the pandemic and the related ongoing public health measures resulting from it. Health care providers and others across the country’s health care infrastructure are exhausted as well.”

However, “COVID-19 and its variants take full advantage when we let our guard down,” the letter warns. “The numerous flexibilities provided under the PHE have allowed for regulatory waivers and flexibilities that have proven vital in safely caring for patients and critical in enabling the country’s health care system to quickly adapt and tackle COVID-19 and its variants.”

How Can Providers Prepare for PHE End?

With the PHE’s exact end date very far from determined, providers would be wise to prepare now for its end, Hethcoat and Sanchez Jara advise. “Healthcare providers should continue to monitor the PHE and be alert to the termination or scaling back of state COVID-19 policies, including those adopted via a governor’s executive order during the height of the pandemic,” they suggest.

“Providers are well-advised to audit and evaluate how they have utilized regulatory waivers and relaxed enforcement policies throughout the pandemic,” Hethcoat and Sanchez Jara continue. “The sunsetting of these policies means that regulators will be more stringent in their compliance expectations of providers. Thus, it’s imperative for providers to know when a waiver or relaxed enforcement policy is no longer operative — lest they incur the potential liability of a regulatory violation by unwittingly relying on a policy that is no longer valid.”