Public Health Emergency Will End in May 2023

COVID-19 Pandemic Deemed Over and Waivers Ending

On January 30, 2023, President Joseph Biden announced that the public health emergency (PHE) and national emergency declaration related to the COVID-19 pandemic will finally end on May 11, 2023, after being in place for over three years. This article will discuss the changes that will take place after both declarations cease, and the implications for stakeholders.

On January 30, 2023, President Joseph Biden announced that the public health emergency (PHE) and national emergency declaration related to the COVID-19 pandemic will finally end on May 11, 2023, after being in place for over three years.[1] This article will discuss the changes that will take place after both declarations cease, and the implications for stakeholders. 

The PHE was declared by the Secretary of Health and Human Services (HHS) on January 31, 2020, and was extended every 90 days thereafter.[2] The PHE granted the federal government temporary powers to help alleviate the effects of the pandemic, particularly in the healthcare sector.[3] Subsequent to the PHE, then-President Donald Trump issued a COVID-19 national emergency declaration, a separate declaration from the PHE, on March 13, 2020.[4] The ultimate end date of both of these declarations was purposefully selected by The White House, with a specific goal of giving at least a 60-day advance notice of the PHE’s end to healthcare providers, rather than abruptly ending this declaration, which could have created chaos and uncertainty throughout the healthcare system.[5]

With the end of the PHE and national emergency declaration, all of the regulatory waivers and flexibilities that were granted (CMS has “a 47-page list of blanket waivers that have been in effect during the emergency”[6]) are set to expire, and most flexibilities granted by the declarations will end.[7] The declarations provided the federal government additional power to waive and modify regulatory requirements in a variety of areas, including private health insurance, Medicare, and Medicaid.[8] Some of the major policies due to go away on May 11, 2023, at the end of the national emergency declaration and PHE, are listed below:

• During the COVID-19 pandemic, states were not allowed to remove Medicaid enrollees from their rosters, even if the enrollee was no longer Medicaid-eligible. Beginning May 12, 2023, states will be able to proceed with Medicaid redetermination. HHS expects this redetermination will result in 15 million Americans losing Medicaid benefits.
• Portions of the Anti-Kickback Statute and Stark Law were waived during the PHE to ensure care accessibility for Medicare and Medicaid beneficiaries. The waivers allowed hospitals to, among other things, compensate physicians above fair market value, e.g., provide hazard pay, and deliver other, additional benefits.
• The Centers for Medicare and Medicaid Services (CMS) waived requirements for hospital discharge planning during the PHE, and allowed hospitals significant administrative flexibility such as extended timelines for completing medical records and increasing the use of verbal orders.
• Hospitals were allowed to render patient care in locations beyond the hospital facility (i.e., at alternate care sites), as long as approval was gained from the state in which the hospital was located.
• Beneficiaries were not required to be admitted to the hospital for at least three days before Medicare would cover subsequent skilled nursing home stays.
• The Drug Enforcement Agency (DEA) allowed providers the flexibility to prescribe controlled substances through telehealth, which boosted care in rural areas.[9] However, the DEA is working to make some of these flexibilities permanent. On February 27, 2023, the agency published a proposed rule that, if finalized, would establish two new limited exceptions for the telemedicine prescribing of controlled substances without a prior in-person exam.[10]

In addition to the waivers and flexibilities ending with the PHE, other policies were extended for a certain period of time beyond the PHE through acts of Congress or by the Biden Administration, including those listed below:

• The New COVID-19 Treatments Add-on Payment (NCTAP), the add-on Medicare payment for new treatments surrounding COVID-19, is expected to lapse at the end of the 2023 fiscal year.
• During the PHE, Medicare beneficiaries were able to receive telehealth services anywhere, not just in rural settings. Telehealth visits were able to be provided through smartphones in lieu of audio and visual capable equipment, and beneficiaries were able to remain in their houses for telehealth visits, without needing to step foot in a healthcare facility. The Consolidated Appropriations Act of 2023 extended these flexibilities through December 31, 2024. [11]

The Biden Administration’s announcement that the PHE declaration will end on May 11, 2023, prompted responses from healthcare stakeholders such as the American Hospital Association (AHA) and the Medical Group Management Association (MGMA). Stacey Hughes, the AHA Executive Vice President for Government Relations and Public Policy, stated that the decision to end the declaration represented progress made, but that the progress should not end with the PHE.[12] She also stated that the AHA will work with the Biden Administration to build on lessons learned during COVID-19, and the organization strongly urges that many of the flexibilities granted during the PHE be made permanent.[13] MGMA asserted their appreciation that the administration provided at least 90 days’ notice prior to the conclusion of the PHE.[14] Additionally, MGMA sent a letter to the Senate and House of Representatives committees on telehealth, urging a permanent expansion of the telehealth services that was enacted during the PHE.[15] Suggestions from MGMA included allowing permanent coverage of audio-only telehealth services and eliminating in-person requirements for mental telehealth services.[16]

Regardless of whether certain COVID-19 era waivers and flexibilities are made permanent, providers will be hard pressed to move away from what has become common practice over the past three years. A Premier Inc. survey of its “hospitals and non-acute providers reveals 69 percent of respondents are currently leveraging” these waivers and flexibilities.[17] While 80 percent of respondents have a plan in place to unwind their reliance on the waivers, more than half of those relying on waivers say they may need 120 days or more to fully revert to pre-COVID-19 operations.[18] Therefore, whether the U.S. healthcare delivery system actually can go back to pre-COVID, “business as usual” operations remains to be seen.

This article was previously published in HCC February 2023 Newsletter, Volume 16, Issue No. 2, and is republished here by permission.

 

[1]             “What Happens When COVID-19 Emergency Declarations End? Implications for Coverage, Costs, and Access” By Juliette Cubanski, Jennifer Kates, Jennifer Tolbert, Madeline Guth, Karen Pollitz, and Meredith Freed, Kaiser Family Foundation, January 31, 2023, https://www.kff.org/coronavirus-covid-19/issue-brief/what-happens-when-covid-19-emergency-declarations-end-implications-for-coverage-costs-and-access/ (Accessed 2/3/23).

[2]             Ibid.

[3]             Ibid.

[4]             Ibid.; “Covid Public Health Emergencies Will End May 11, White House Says” By Siladitya Ray, Forbes, January 31, 2023, https://www.forbes.com/sites/siladityaray/2023/01/31/biden-administration-will-end-covid-19-emergency-declarations-on-may-11/?sh=19ac61655b99 (Accessed 2/1/23).

[5]             “Statement of Administration Policy” Executive Office of the President, Office of Management and Budget, January 30, 2023, https://www.whitehouse.gov/wp-content/uploads/2023/01/SAP-H.R.-382-H.J.-Res.-7.pdf (Accessed 2/1/23).

[6]         “What’s at stake when the health emergency ends” By Maya Goldman, Axios, January 24, 2023 https://www.axios.com/pro/health-care-policy/2023/01/24/public-health-emergency-policies-end (Accessed 2/24/23).

[7]             “What the End of the Federal COVID-19 Emergency Means for Healthcare” By Maya Goldman and Mari Devereaux, Modern Healthcare, January 31, 2023, https://www.modernhealthcare.com/policy/end-covid-public-health-emergency-healthcare-medicare-telehealth-medicaid (Accessed 2/1/23).

[8]             “What Happens When COVID-19 Emergency Declarations End? Implications for Coverage, Costs, and Access” By Juliette Cubanski,      Jennifer Kates, Jennifer Tolbert, Madeline Guth, Karen Pollitz, and Meredith Freed, Kaiser Family Foundation, January 31, 2023, https://www.kff.org/coronavirus-covid-19/issue-brief/what-happens-when-covid-19-emergency-declarations-end-implications-for-coverage-costs-and-access/ (Accessed 2/3/23).

[9]             “What the End of the Federal COVID-19 Emergency Means for Healthcare” By Maya Goldman and Mari Devereaux, Modern Healthcare, January 31, 2023, https://www.modernhealthcare.com/policy/end-covid-public-health-emergency-healthcare-medicare-telehealth-medicaid (Accessed 2/1/23); “Federal Stark Law Waivers During COVID-19: A Strategic Guide for Physician Practices” American Medical Association, December 7, 2020, https://www.ama-assn.org/system/files/2020-12/stark-waiver-guide.pdf (Accessed 2/3/23); “Fact Sheet for State and Local Governments: CMS Programs & Payment for Care in Hospital Alternate Care Sites” Centers for Medicare and Medicaid Services, December 13, 2021, https://www.cms.gov/files/document/covid-state-local-government-fact-sheet-hospital-alternate-care-sites.pdf (Accessed 2/3/23); “COVID-19 & HIPAA Bulletin Limited Waiver of HIPAA Sanctions and Penalties During a Nationwide Public Health Emergency” Department of Health and Human Services, March 15, 2020, https://www.hhs.gov/sites/default/files/hipaa-and-covid-19-limited-hipaa-waiver-bulletin-508.pdf (Accessed 2/16/23).

[10]           “DEA’s Proposed Rules on Telemedicine Controlled Substances Prescribing after the PHE Ends” By Nathaniel Lacktman, Foley & Lardner LLP, February 27, 2023, https://www.foley.com/en/insights/publications/2023/02/deas-telemedicine-controlled-substances-phe-ends (Accessed 2/27/23).

[11]     “What Happens When COVID-19 Emergency Declarations End? Implications for Coverage, Costs, and Access” By Juliette Cubanski,      Jennifer Kates, Jennifer Tolbert, Madeline Guth, Karen Pollitz, and Meredith Freed, Kaiser Family Foundation, January 31, 2023, https://www.kff.org/coronavirus-covid-19/issue-brief/what-happens-when-covid-19-emergency-declarations-end-implications-for-coverage-costs-and-access/ (Accessed 2/3/23); “What the End of the Federal COVID-19 Emergency Means for Healthcare” By Maya Goldman and Mari Devereaux, Modern Healthcare, January 31, 2023, https://www.modernhealthcare.com/policy/end-covid-public-health-emergency-healthcare-medicare-telehealth-medicaid (Accessed 2/1/23); “2022 IPPS FINAL RULE RELEASED WITH ALLOWANCES DUE TO COVID-19 PHE, INCLUDING EXTENDED NCTAP” Yes Him Consulting, January 17, 2023, https://yes-himconsulting.com/2022-ipps-final-rule-released-with-allowances-due-to-covid-19-phe-including-extended-nctap/ (Accessed 2/15/23).

[12]           “Administration to End COVID-19 Emergency Declarations on May 11” American Healthcare Association, January 31, 2023, https://www.aha.org/news/headline/2023-01-31-administration-end-covid-19-emergency-declarations-may-11 (Accessed 2/1/23).

[13]           Ibid.

[14]        “MGMA Washington Connection 02/02/2023: Biden Administration To End COVID-19 PHE on May 11” MGMA Missouri, February 2, 2023, https://mgma-mo.org/news/13082814 (Accessed 2/16/23).

[15]           Ibid.

[16]           Ibid.

[17]           “The End is Near: Are Providers Ready for the Unwinding of the COVID-19 Public Health Emergency?” Premier, February 9, 2023, https://premierinc.com/newsroom/blog/the-end-is-near-are-providers-ready-for-the-unwinding-of-the-covid-19-public-health-emergency (Accessed 2/24/23).

[18]           Ibid.

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Todd A. Zigrang, MBA, MHA, ASA, CVA, FACHE, is president of Health Capital Consultants, where he focuses on the areas of valuation and financial analysis for hospitals and other healthcare enterprises. Mr. Zigrang has significant physician-integration and financial analysis experience and has participated in the development of a physician-owned, multispecialty management service organization and networks involving a wide range of specialties, physician owned hospitals as well as several limited liability companies for acquiring acute care and specialty hospitals, ASCs, and other ancillary facilities.

Mr. Zigrang can be contacted at (800) 394-8258 or by e-mail to tzigrang@healthcapital.com.

Jessica Bailey-Wheaton, Esq., is vice president and general counsel for Heath Capital Consultants, where she conducts project management and consulting services related to the impact of both federal and state regulations on healthcare exempt organization transactions, and provides research services necessary to support certified opinions of value related to the fair market value and commercial reasonableness of transactions related to healthcare enterprises, assets, and services.

Ms. Bailey-Wheaton can be contacted at (800) 394-8258 or by e-mail to jbailey@healthcapital.com.