Life after the public health emergency ends

After months of speculation, President Biden announced that his administration will end the COVID-19 national emergency and public health emergency (PHE) on May 11, 2023. While the industry has waited for the eventual unwinding, the President's announcement acknowledges the unprecedented change in regulatory flexibilities that healthcare providers will need to operationalize.

An abrupt end to the emergency declarations would create wide-ranging chaos and uncertainty throughout the health care system — for states, for hospitals and doctors' offices, and, most importantly, for tens of millions of Americans.

Since the initial declaration of a PHE on January 31, 2020, the healthcare industry experienced a myriad of statutory and regulatory waivers and operational flexibilities in response to the COVID-19 pandemic, in some ways fundamentally changing the way healthcare is delivered and received in the United States. Patients and providers have incorporated and relied on these regulatory flexibilities in implementing a number of programs, from telemedicine to licensing of physicians, to reliance for payment and coding instructions, many of which will come to an end when the PHE terminates on May 11, 2023. The administration sought to prepare the industry for some of these changes by decoupling those regulatory flexibilities on which many healthcare providers and Americans have come to rely in the Consolidated Appropriations Act, 2023.

Between now and May 11, it will be critical for providers to evaluate the various operational and reimbursement changes implemented as result of the pandemic to ensure they do not face compliance risk come May 12. While certain waivers and flexibilities are identified below, the CMS coronavirus waivers & flexibilities website posts provider-specific fact sheets that identify those waivers and  flexibilities that will end versus those that will transition.

• Medicaid redeterminations will begin as soon as April 1, 2023. During the pandemic, Medicaid enrollment skyrocketed as additional populations were granted eligibility and as continuous enrollment was extended to existing enrollees to ensure coverage. With the end of the PHE, estimates are that as many as 15 million individuals could lose coverage. States have up to 12 months to complete these redeterminations, but certain states have implemented policies to complete redeterminations at a faster clip. This is anticipated to result in swift and errant determinations and providers should prepare for loss of coverage and increased patient confusion regarding their coverage options. Payment and reimbursement for care will also be impacted.
• Restrictions and reductions in coverage for COVID-19 diagnostic testing and treatment. Health plans will once again be able to implement network restrictions, cost sharing and prior authorization or prescription requirements. This will create new administrative burdens and complexity for providers and their administrative staff.
• A narrowing of telehealth flexibilities and reimbursement. Medicare beneficiaries have had access to expanded types of practitioners and services via telehealth and relaxed location and established patient requirements. States have loosened physician and non-physician licensure requirements and permitted practice across state lines in a more relaxed way. While the Consolidated Appropriations Act, 2023, extended many of the Medicare waivers through 2024, providers will have to navigate an increasingly complex and changing regulatory and reimbursement environment for telehealth services. Moreover, those professionals relying on their licensure under the PHE should ensure that their licensure and billing will not be adversely impacted heading into the end of the PHE. Enforcement discretion for HIPAA requirements relating to the use of certain telehealth modalities will also end with the expiration of the PHE.
• Medicare will again no longer pay for skilled nursing facility (SNF) services without the prerequisite of a three-day qualifying stay (unless participating in an ACO or other CMMI model with a SNF waiver).
• Providers will no longer have the ability to screen patients at an off-campus location under the Emergency Medical and Labor Treatment Act (EMTALA).
• Providers will need to ensure their credentialing and medical staff policies account for the end of the flexibilities provided during the PHE, such as the relaxing of certain steps in the privileging process.
• Any expansion of locations under the Medicare conditions of participation, state licensing and provider-based department requirements will need to immediately cease. This is particularly critical for any department that had been operating and receiving reimbursement as a grandfathered provider-based outpatient department.
• Providers should review any arrangements with physicians that have relied on waivers under the Physician Self-Referral law (Stark).

Healthcare providers must also be mindful of states ending their public health emergency declarations and any state specific regulatory and licensure flexibilities relied upon during this period.

CMS will be releasing and updating guidance documents for healthcare providers regarding the end of the PHE.  Norton Rose Fulbright attorneys are continuing to monitor these updates and advise clients on their related operational and reimbursement challenges.