HHS is giving clear signals of wind down of public health emergency

Jill Lashay is a healthcare attorney, and Michael Strazzella is head of Federal Government Relations, at Buchanan, Ingersoll & Rooney.

Photo courtesy Buchanan, Ingersoll & Rooney

The current public health emergency ends on April 16, with the federal government giving all indication of the coming end of the PHE, according to Michael P. Strazzella, head of Federal Government Relations at Buchanan Ingersoll and Rooney.

Since the Department of Health and Human Services has said it would give 60 days' notice prior to announcing the end of the PHE, most providers and others are looking for another 90-day extension that would end the PHE in July, or at least give an extension past the April deadline.

Sixty days is not a long notice period for hospitals to prepare for the end of waivers and flexibilities the government has granted under the PHE, Strazzella said.

But HHS Secretary Xavier Becerra has given clear indication during budget hearings that the country is getting close to the end of this public health emergency, he said. 

Last Thursday, the Centers for Medicare and Medicaid Services moved toward phasing out certain flexibilities the agency said were no longer needed for long-term care. CMS said it would return to certain pre-COVID-19 policies for skilled nursing facilities. Some of the same waivers are also being terminated for inpatient hospices, intermediate care facilities for those with intellectual disabilities and end-stage renal disease facilities.

"It's a clear signal that they're looking to wind down," Strazzella said. As we have seen, the numbers are starting to decline. There's this COVID fatigue in how the public wants to handle this. It's beyond political. It's a social experiment that's been going on for two years."

But it is also political. "No one wants this as part of the 2022 election," he said. The midterm elections are November 8.

WHY THIS MATTERS

CMS has granted numerous waivers under the PHE that would be terminated either upon the end of the emergency period, 60 days after the waiver or modification was first published, or at the end of the year the PHE expires.

Hospitals have used these waivers to spur innovation, with two of the biggest being the use of telehealth and acute hospital care at home.

Under the PHE, providers were paid for telehealth visits at parity to in-person care. Telehealth use went beyond the former bounds of rural healthcare.

Telehealth would continue for at least 180 days past the PHE, since the government has granted that extension, Strazzella said. Also, he said, "While Congress has passed the Consolidated Appropriations Act, which extends certain telehealth services for Medicare patients for 151 days after the official end of the PHE, this is a specific, short-term solution that could leave providers scrambling to prepare for the expiration of waivers."

Hospital at home models became imperative for many health systems during COVID-19 surges, to free up needed hospital beds. It also created a financial advantage for hospitals in value-based contracts, such as Medicare Advantage agreements that extended care to 30-day episodes, Mark Larson, principal of Sg2, told Healthcare Finance News last fall. Sg2 is a consulting and analytics firm and Vizient subsidiary. 

Many patients have preferred recovering at home. 

The Acute Hospital Care at Home waiver, launched in November 2020, suspended the requirement for nursing services to be provided on premises 24 hours a day, seven days a week, and for the immediate availability of a registered nurse for care of any patient, according to NEJM Catalyst. Medicare inpatient payments did not change. CMS will use information gathered during the public health emergency to determine the next steps for this program within its authority once the PHE concludes, the report said.

Strazzella said, "CMS will retain the right to issue waivers for specific instances based on data collected by the Centers for Disease Control and Prevention and CMS. These waivers will phase out in two waves – 30 and 60 days after new guidance is released. As long as the PHE is active, CMS can reissue waivers as needed."

THE LARGER TREND

Should the end be near for the PHE, it is coming at a time when the country and hospitals continue to battle two new variants of the coronavirus. 

"That becomes a challenge in multiple ways," Strazzella said. "One is we're not over the pandemic. Second, we still have a large contingency who are not vaccinated."

As of April 5, HHS is no longer adjudicating claims providers submit for vaccine administration. The government also stopped accepting claims to the COVID-19 Uninsured Program for the testing and treatment of COVID-19. Both changes were due to lack of federal funds.

Jill M. Lashay, a healthcare attorney at Buchanan Ingersoll & Rooney works with clients in the healthcare space, said the lack of federal dollars for vaccinations will strain resources, particularly for underserved populations.

The largest issue for health systems continues to be staffing shortages.

"The pandemic is not over, it's mutated in many ways," Strazzella said. "When the federal PHE ends, changes to out-of-pocket costs for COVID testing; telemedicine provisions; Federal Emergency Management Agency mobilization; and flexibilities in funding and coordination that would not be possible without the federal declaration would all be eliminated."

Medicaid directors, health plans, nursing homes, children's hospitals and others have urged Congress to provide at least 120 days of lead time before unwinding the Medicaid federal pay bump and coverage protections tied to the COVID-19 public health emergency declaration, Strazzella said. 

In February, HHS said it would give 60 days' notice before ending PHE, according to the Accreditation & Quality Compliance Center.

Separately, the Biden administration committed to providing the nation's governors with at least 60 days advance notice of an intention to terminate the federal PHE. The PHE declaration lasts 90 days unless it is renewed by the secretary of Health and Human Services.

Former HHS Secretary Alex Azar issued the first PHE declaration for COVID-19 on January 31, 2020. It has been renewed eight times over two years, with the latest extension approved by current HHS Secretary Xavier Becerra on January 14. 

Twitter: @SusanJMorse
Email the writer: susan.morse@himssmedia.com