COVID-19 PHE to End May 11

After 12 PHE declaration renewals, the feds’ wind-down will drop a significant workload on providers.

The Biden administration has been signaling the end of the COVID-19 public health emergency (PHE) since late last summer, but now there’s a concrete end date — which means you need to start preparing for it immediately.

In an August 2022 blog entry titled “Creating a Roadmap for the End of the COVID-19 Public Health Emergency,” the Centers for Medicare & Medicaid Services (CMS) “encourage[d] health care providers to prepare for the end of these flexibilities as soon as possible and to begin moving forward to reestablish previous health and safety standards and billing practices.” CMS included provider-specific lists of waivers and their statuses, some of which have since changed due to legislation or rulemaking.

Despite this indication, the Department of Health and Human Services (HHS) renewed the COVID-19 PHE for the 12th time Jan. 11. But on Jan. 30, the White House released a statement setting the PHE’s end date for May 11. “This wind-down would align with the Administration’s previous commitments to give at least 60 days’ notice prior to termination of the PHE,” the statement points out.

Experts had predicted an announcement about the PHE’s end by February. But the announcement was likely hastened by proposed legislation from Republicans that would end the PHE immediately upon enactment, with no notice.

“An abrupt end to the emergency declarations would create wide-ranging chaos and uncertainty throughout the health care system,” the White House statement protests. Although any such bill(s) passed by the House of Representatives would likely not pass the Senate, or would face a Biden veto, congressional Democrats had asked the White House for a definitive timeline for the PHE’s end to boost their position in opposing such legislation, according to press reports.

Chart Your Course

Providers that are still using regulatory flexibilities allowed by PHE waivers now have some hard work ahead of them to get back to “normal.”

“The declaration of a public health emergency has provided valuable flexibility and access to critical resources providers desperately need to ensure the wellbeing of older adults, who are among the most vulnerable to falling ill or worse from COVID-19, and also of the people who care for them,” says LeadingAge head Katie Smith Sloan in a statement. “On May 11, many of those resources and flexibilities will be gone,” Smith Sloan emphasizes.

“While we appreciate the administration giving our mission-driven, nonprofit providers some time to plan, our members are severely overstretched and now face a new landscape of funding and rules while simply trying to survive,” Smith Sloan criticizes. “Questions still remain not just about waivers and flexibilities, but policies and other aspects of how the Biden administration will shift gears to a true post-COVID country.”

Good News

Some good news is that not all the COVID-related flexibilities will go away, highlights healthcare attorney Elizabeth Hogue. “Helpful access to telehealth visits with physicians remains in effect based on the Congressional spending package that was enacted in December,” Hogue cheers.

Another upside of the PHE ending is providers’ clarity on what’s ahead, notes attorney Jacob J. Harper with law firm Morgan Lewis in Washington, D.C. “Congress’s inability to advance any type of permanent legislation ha[d] made it difficult for healthcare providers to undertake long-term strategy development, thereby stifling investment in digital health technologies and operations,” Harper notes in online analysis. As “the concept of an ‘emergency’ — the ‘E’ in PHE” got further stretched, providers were stranded in limbo, Harper says. Now they should be able to make plans based on concrete dates and policies.

Stay in Compliance

Nevertheless, some flexibilities will be ending, and smart agencies will waste no time drawing up and executing plans to stay in compliance accordingly.

“During the past two years, many healthcare providers and stakeholders across the industry have integrated the PHE and the accompanying waivers into their business practices,” say attorneys Ari J. Markenson and Yuncong (Giselle) Lai with law firm Venable. “The end of the PHE signals the end of many of these waivers, so healthcare providers … need to be aware of how to navigate the return to post-pandemic operations without the waiver flexibility,” Markenson and Lai advise.

“HHS and CMS are committed to working with providers now … but that does not mean providers will get a ‘pass’ from fraud and abuse investigations following the end of the PHE,” warn attorneys Gary A. Rosenberg and Victoria Larson with law firm Verrill.