November 17, 2020
Note: We do not expect a crisis in terms of a potential discontinuation of the current (federal) Public Health Emergency (PHE) declaration when the Biden Administration is installed in mid-January. We just wanted to share this article as a reference, and in doing so help everyone understand some of what the PHE drives at the state level. Inauguration Day is January 20, 2021.
COVID-19 public health emergency declaration set to expire on Inauguration Day
An HHS COVID-19 public health emergency declaration tied to regulatory flexibilities and funding for healthcare providers is set to expire on Inauguration Day.
A drawn-out vote count and the lack of a concession from President Donald Trump has slowed the transition process for President-elect Joe Biden’s team. Stakeholders and public health experts say the emergency declaration will likely still be necessary as case numbers are trending upward and potential vaccine distribution is on the horizon.
The current administration could choose to renew the declaration ahead of time, or the incoming team could make it one of its first healthcare priorities when power officially transitions.
“They just need to add that to their list of day-one activities,” said American Public Health Association Executive Director Dr. Georges Benjamin.
HHS declined to comment on whether it would renew the declaration, and the Biden transition team did not respond to an inquiry on the issue.
The Biden transition team has announced in recent days a COVID-19 advisory panel and Agency Review Teams, including 30 individuals focused on HHS.
“They won’t want to upset the apple cart by letting the public health emergency lapse when they are trying to make the transition,” said Winston & Strawn partner T. Reed Stephens.
Some notable policies tied to the public health emergency are the Medicare inpatient 20% add-on payment for COVID-19 patients, increased federal Medicaid matching rates and maintenance of effort requirements, requirements that insurers cover COVID-19 testing without cost-sharing and waivers of telehealth restrictions.
Adjustments CMS made to the Medicare Shared Savings Program for accountable care organizations are also connected to the length of the public health emergency. The number of months the emergency lasts affects the amount of shared losses an ACO must pay back to CMS.
The potential COVID-19 vaccine distribution will add a new dynamic to 2021’s designation. Congress conditioned increased Medicaid funds on states covering vaccines without cost-sharing for enrollees, but that requirement expires with the public health emergency, said Andy Schneider, a professor at Georgetown University’s public policy school.
HHS has renewed the public health emergency three times since January. Each renewal extended the emergency for 90 days. The second renewal in July caused significant anxiety in the provider community before its approval.
“At that point, there was uncertainty about the commitment of the administration to any kind of comprehensive policy. There is no question with the new administration that the pursuit of COVID-19 will be the highest priority,” said Federation of American Hospitals President and CEO Chip Kahn.
American Hospital Association Vice President for Quality and Patient Safety Policy Nancy Foster said trust has built in the process now that multiple renewals have gone smoothly. AHA has not begun outreach on the issue yet, but it will be an item on its list to discuss in the coming weeks.
“We’re not worried about it per se, but there are certainly formal steps that need to be taken,” Foster said.
The healthcare system in January will still need policy adjustments associated with the public health emergency including coverage of telehealth, supervision of medical residents, supervision of diagnostic testing, provider-based hospital departments, and loosened restrictions related to post-acute care facilities, said DLA Piper Partner Donna Thiel.
“HHS has repeatedly stated that the end of PHE will not be a surprise—that adequate notice of its end will afford opportunities for adjustment,” Thiel said. “The conundrum we face now is whether the Biden administration will signal its intention to extend PHE before inauguration.”