Recently, multiple organizations have urged President Biden and the Department of Health and Human Services (HHS) to again extend the Public Health Emergency (PHE) designation and the emergency declarations currently in force. The PHE declaration was due to expire on April 16, 2022. HHS first declared the COVID-19 emergency in January 2020 and has extended the declaration eight times since.
The PHE emergency powers allowed for a significant and rapid rise in telehealth visits as well as increased flexibility for federal programs such as Medicaid and Medicare which many people don’t realize will likely end when the declared emergency is over. For example, the declaration expanded access to Medicare and Medicaid coverage and telehealth services, modified the potential liability for providers caring for COVID patients, expanded scope of practice for allied health providers, allowed licensed healthcare staff to work in other jurisdictions where they were not formally licensed and provided additional funding to states for vulnerable populations. The emergency declaration was particularly critical to assuring care availability when the nation was in lockdown, experiencing extremely high hospitalization rates and the wholesale disruption of health care delivery systems.
Unwinding such policies will be a massive bureaucratic task. HHS has pledged 60 days’ notice before terminating the emergency due to the impact on states and the health care industry. The Biden administration has yet to issue any notice of intent to terminate the PHE. Therefore it is expected that the PHE will be extended to July 15, 2022.
While COVID deaths and hospitalizations are on the decline in many areas of the nation, and mask mandates are being lifted, there are legitimate reasons why organizations such as the American Hospital Association (AHA), Children’s Hospital Association and the National Association of Behavioral Healthcare are urging caution in declaring the pandemic officially at an end:
- While the overall decline in cases is heartening, the Northeast and South are again experiencing an increase in case counts.
- Due the spread of a new omicron variant, Europe is again in the grip of another wave of COVID, causing an increase in hospitalizations and illness. This subvariant has already been detected in the U.S.
- Vulnerable populations such as children under 5 years of age and immunocompromised patients who cannot be vaccinated remain a concern; and
- There remains high demand for behavioral health services required due to the stress, isolation and other triggers for depression, substance abuse and related disorders increased by the pandemic strictures. These services are more readily available under the relaxed pandemic rules relating to telehealth.
In addition to the ongoing impact of COVID on patients and health care organizations as the virus continues to mutate, the Biden administration, the HHS and the states must also consider the ongoing viability of pandemic-driven innovations to health care when the pandemic is formally deemed at an end. There are many changes in health care delivery made under the emergency declarations that various health care professionals hope will endure. For example:
- Continue to allow allied health professionals such as nurse practitioners and physician assistants their increased scope of practice which gave them ability to prescribe and refer services that previously only a physician could order.
- Make permanent the relaxation of Stark rules which allowed health systems to offer free use of medical office space to physicians and deploy hospital staff to a physician’s office to assist with care, treatment and care coordination between the hospital and the physician practice. Also, during the PHE, CMS waived the “fair market value” requirement thereby allowing a hospital to pay a physician either above or below fair market value for their professional services, as well as allowing physicians to pay below market value for rentals of space, equipment and purchases of items or service.
- Increased flexibility for licensed medical staff such as physicians and nurses to work outside their states of licensure. During the pandemic, many states took emergency actions to increase the availability of nursing staff nationwide to address the many staff shortages that developed in areas where the infection rates and hospitalizations surged. Also, some states have issued waivers and exceptions for nurses with inactive licenses, including retired nurses, to temporarily enter the workforce without meeting state requirements if they have licenses in good standing; and
- Make telehealth and remote monitoring permanent digital options for patient care. Innovations in homecare diagnostic equipment has significantly increased the ability of providers to offer remote virtual care.
The end of the pandemic will automatically trigger certain changes related to coverage that may impede remote access for some Medicare and Medicaid patients. Effective the day following the declared end of the PHE, Medicare coverage of virtual telehealth behavioral health sessions will require both an in-person non-telehealth session to occur six months as well as annual in-person sessions thereafter. Other telehealth options for Medicare services will quickly phase out after the PHE ends. Also, states will be faced with determining who no longer qualifies for Medicaid and must be removed from coverage.
While the end of the PHE is inevitable, the work of the states and the federal government to assess which pandemic-driven changes should survive will continue well beyond the declared end of the PHE. The new challenge will be for federal and state policymakers and other stakeholders to leverage the lessons learned to improve the health care system in the future.