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Medicare Compliance & Reimbursement

COVID-19 Update:

Feds Pencil in May 11 for COVID PHE End Date

Published on Mon Feb 20, 2023

Start planning now to avoid post-PHE pandemonium.

The COVID-19 public health emergency (PHE) was bound to come to a close — and with an end date confirmed, it’s compliance crunch time.

Reminder: Since late last summer, the Biden administration has been signaling the COVID-19 PHE’s end. In an August blog entry last year 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 (see story, p. 3).

First: Despite this indication, the Department of Health and Human Services (HHS) renewed the COVID-19 PHE for the twelfth time on Jan. 11 (see Medicare Compliance & Reimbursement, Vol. 49, No. 2). Then on Jan. 30, the White House released a statement setting the PHE’s end date on 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 the Biden administration would announce 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.

Next: On Feb. 9, HHS sent state governors a letter announcing another COVID-19 PHE renewal, effective Feb. 11. HHS “is planning for this to be the final renewal and for the COVID-19 PHE to end on May 11, 2023,” reiterated HHS Secretary Xavier Becerra in the letter. “Rather than 60 days’ notice, I am providing 90 days’ notice before the COVID-19 PHE ends to give you and your communities ample time to transition.”

Chart Your Course With Concrete Timeline

Meanwhile, Medicare 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.”

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.

Nevertheless, some flexibilities will be ending, and Medicare providers shouldn’t waste time drawing up and executing plans to ensure their compliance post-COVID PHE.

“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 in online legal analysis.

Resources: The White House announcement is at www.whitehouse.gov/wp-content/uploads/2023/01/SAP-H.R.-382- H.J.-Res.-7.pdf and the letter to state governors is at www.hhs.gov/about/news/2023/02/09/letter-us-governors-hhs-secretary-xavier-becerra-renewing-covid-19-public-health-emergency.html?utm_source=news-releases-email&utm_ medium=email&utm_campaign=february-12-2023.

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