By Emily Jones
Vizient Regulatory Affairs and Administration Policy Director
Why You Need to Know About May 11, 2023
On Jan. 30, 2023, the Biden Administration stated its intention to end the COVID-19 Public Health Emergency (PHE) on May 11. COVID-19 was declared a national PHE on Jan. 31, 2020. However, PHE declarations must be renewed every 90 days. Given how long the COVID-19 PHE declaration has been in place, and the myriad flexibilities linked to it, it may be hard to imagine again changing practices to align with the more rigid requirements that were in place before the PHE.
Until recently, the renewal of the PHE every 90 days seemed inevitable. While there have been partisan disagreements over the length of the PHE, there is no question that hospitals and other healthcare stakeholders understand the criticality of it and how it has helped providers deliver vital healthcare services in a time of crisis. COVID-19 continues to challenge healthcare providers as communities continue to face surges, while the flexibilities provided over the last three years have changed several aspects of care delivery, particularly in the context of telehealth and virtual care.
Additionally, consequences of the pandemic included workforce strain and financial challenges, which continue to put enormous pressure on hospitals. Also, the winter months have brought the “tripledemic” of flu, COVID and RSV, which increased demand for services across the nation. As a result, understanding what the PHE declaration means to hospitals and providers is an important step in evaluating preparedness for May 11, 2023 – the date that the PHE declaration will no longer be in effect.
Statutes Governing the Public Health Emergency
So, what exactly is a PHE and what are the implications of ending it? Under Section 319 of the Public Health Service Act, the Secretary of the Department of Health and Human Services (HHS) may determine that a disease or disorder presents a public health emergency. This declaration allows the Secretary to quickly respond to an outbreak, including the ability to enter into contracts, conduct investigations, provide equipment and services, and waive or modify certain rules related to federal healthcare programs to aid the response to the outbreak.
Since 2005, the federal government has issued dozens of unique PHEs, from events ranging from SARS to hurricanes. Recent outbreaks of infectious diseases such as Ebola, Zika, and H1N1 have warranted the declaration of a PHE. A declaration allowing the Administration to combat the opioid epidemic has been in place since October 2017. Although PHEs typically either quietly get renewed or are left to expire while we persist forward, the COVID-19 PHE is unique. In early 2021, the previous Acting Secretary of HHS shared the Administration's intention to give stakeholders 60 days' notice before the termination of the PHE. However, this recent statement from the Administration provides over 90 days' notice – despite the fact that the Secretary of HHS is granted the legal authority to end the PHE. Yet, the need to plan for the end of the COVID-19 PHE is more real than ever.
Under the COVID-19 PHE, the Centers for Medicare and Medicaid Services (CMS) provided more flexibility to hospitals regarding certain Medicare Conditions of Participation requirements. As a result, care delivery and operations have likely changed to account for the demands that COVID-19 has put on the healthcare system. These changes range from large-scale changes to delivery of care, such as the expanded use of telehealth and virtual health services, to the micro. For example, have you missed your quarterly fire drills? CMS waived this requirement under PHE authority and replaced it with a documented orientation training program related to the facility's current fire plan. Or perhaps you work in a critical access facility and notice that patients have been staying longer than normal. Under the authority granted by the PHE, CMS waived the requirement that a patient's length of stay remain under 96 hours, allowing patients to remain in these facilities longer than previously allowed.
Legislative and Regulatory Changes
As healthcare has moved forward in tandem with the COVID-19 pandemic and the PHE, both recent Congresses and Administrations have worked to create temporary legislative and regulatory infrastructure around some of these waivers and flexibilities. This work has helped certain areas of healthcare progress on a forward path while giving stakeholders the ability to make changes without fear of the PHE ending. For example, the recent omnibus appropriations bill extended until Dec. 31, 2024 some policies that were initially reliant on the PHE declaration being in place, such as those related to telehealth and acute hospital care at home. At the same time, Congress also directed the Secretary of HHS to provide an interim report on telehealth by Oct. 1, 2024, which may help inform decisions for future policy extensions beyond the context of the PHE.
The Administration's announcement that the PHE will end on May 11, 2023, should prompt healthcare providers to carefully identify those flexibilities that will be expiring along with the PHE declaration. Some of these flexibilities will end as soon as the PHE terminates. In addition to the waivers mentioned under the conditions of participation, after the PHE terminates, hospitals will no longer receive the 20 percent payment adjustment for discharge of patients diagnosed with COVID-19. Other flexibilities have been extended by Congress through various timelines, such as Acute Care Hospital at Home program and many telehealth policies, which are extended through the end of 2024. Government resources, such as the CMS roadmap, provide guidance to help hospitals and providers prepare for the end of the PHE.
As the PHE declaration remains important to providers, Vizient continues to help hospitals receive up-to-date information and to advocate in support of providers' needs. Although things could still change between now and May 11, providers and facilities should begin preparing for the end of the PHE. We are always interested in learning from providers. Take this survey to let us know which waivers and flexibilities your facility currently relies upon and how your facility plans to transition away from PHE flexibilities. Please don't hesitate to reach out to Vizient's Office of Public Policy and Government Relations – we want to hear from you!
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About the author
Emily Jones currently serves as Vizient’s Regulatory Affairs and Administration Policy Director. In this role, she identifies and responds to regulatory developments of most interest to Vizient’s members. Quality program measures and telehealth are among the topics which Emily focuses on at Vizient. Prior to joining Vizient, Emily was the Senior Public Health Advisor to the Commissioner at the Georgia Department of Public Health. In her previous roles, she specialized in state government affairs, legislative strategy, regulatory policy, and strategies to improve public health and reduce disparities. Emily has also worked at various non-profits focusing on improving maternal outcomes and population health. Her educational background includes a Bachelor of Science in Psychology and a Master of Public Health from the University of Florida. Emily also received a Juris Doctor from Georgia State University Law School and clerked for a federal judge after graduation. She is admitted to the Georgia Bar.