COVID-19 National Emergency ends ahead of schedule
On April 10, 2023, President Joe Biden signed a bill that brought about an immediate end to the COVID-19 National Emergency declared by President Donald Trump on March 13, 2020. The resolution – H.J.Res.7 – accelerated the end of the original timeline for the National Emergency by almost a month.
The current White House administration originally planned to end the National Emergency on May 11, 2023, along with the Public Health Emergency (PHE) that had been declared by the Secretary of the Department of Health and Human Services on January 31, 2020. In a policy statement released on January 30, 2023, the White House committed to the May 11 end date in order to provide adequate notice to all stakeholders affected by the policies and flexibilities in place as a result of those emergency declarations. (Another bill, H.R. 382, which seeks to end the PHE, has passed the House of Representatives, but has not been voted on in the Senate.)
In response to the news that the National Emergency could terminate early, the Centers for Medicare & Medicaid Services (CMS) released a statement assuring stakeholders that the end of the PHE would not be affected by the passage of H.J.Res.7. CMS still anticipates that the PHE will end on May 11, 2023, and the waivers currently in effect as a result of authority granted during the COVID-19 pandemic will remain in place until the end of the PHE.
Impact of pandemic-era policies from PHE ending early
It should be noted that, while CMS has publicly stated its commitment to a May 11 end date for the PHE, the authority for some of CMS’s waivers and flexibilities - such as the Stark Law Blanket Waivers - appear to derive from the National Emergency. To our knowledge, no one has publicly disputed the CMS website statement that the waivers and flexibilities will continue until May 11, despite the now-terminated National Emergency serving as the source of authority for some of those waivers and flexibilities; however, providers should be working to bring operations into compliance as soon as possible.
Questions remain for those in the healthcare industry, because of the many pandemic-era policies that are scheduled to end as soon as the PHE ends. For example, it appears that CMS is taking the position that the Stark Law Blanket Waivers put in place during the PHE will remain in effect until the termination of the PHE. If the PHE were to end early via H.R. 382, the Stark Law Blanket Waivers would immediately terminate. Similarly, the Health and Human Services Office of Civil Rights has exercised enforcement discretion regarding certain HIPAA requirements while the PHE remains in effect. While certain identified waivers and flexibilities will stay in place after the PHE is terminated, many will end immediately. In the event that the PHE would end before May 11, 2023, healthcare providers could find themselves immediately out of compliance with certain Stark Law, HIPAA, or other provisions due to this potential accelerated termination of the PHE.
Healthcare organizations should prepare for compliance after the PHE
If not already doing so, healthcare providers should determine whether their organizations are prepared for compliance after the PHE. Review policies and procedures to work diligently towards a successful transition to a post-PHE era. Regardless of whether a provider will be able to adjust to an accelerated timeline, providers should consider May 11, 2023, the final deadline (except as otherwise stated), because the actions and statements from Congress and the White House seem to signal that there will be little appetite to extend COVID-era policies past May 11, 2023.
Contact a healthcare attorney for assistance in determining how to adequately and efficiently comply with the post-PHE regulatory landscape. The Healthcare Practice Group at McDonald Hopkins continues to monitor the impact of the termination of the PHE and the National Emergency on the healthcare industry. Future articlers will cover specific changes that are expected to occur as a result of the emergency terminations.
