The End of the COVID-19 Public Health Emergency: Moving Forward to Reestablishing Rules and Standards
The Biden Administration has announced that the federal Public Health Emergency (PHE) for COVID-19 will expire at the end of the day on May 11, 2023. During the COVID-19 PHE, the Centers for Medicare & Medicaid Services (CMS) has used a combination of emergency authority waivers, regulations, enforcement discretion, and sub-regulatory guidance to grant flexibilities to healthcare providers and thereby help providers expand facility capacity and best use existing resources (primarily, staff and time) to respond to the high demand for healthcare caused by the COVID-19 pandemic. Many healthcare providers have taken advantage of some or many of these waivers. However, the approaching expiration of the PHE also means the expiration of many of these flexibilities. Thus, as healthcare providers prepare for the road ahead post-PHE, they should consider what changes to facility usage and practices and policies will be required to assure compliance with, for example, Medicare conditions of participation and payment and state licensure requirements that were waived during the PHE.
For example, when the PHE expires, hospitals will no longer be allowed to provide care in temporary expansion sites or spaces within the hospital that do not conform to Medicare conditions of participation requirements. The Emergency Medical Treatment and Labor Act (EMTALA) waiver allowing hospitals to screen patients at a location offsite will also come to an end. Likewise, the expiration of the PHE will mean the end of the blanket waivers of certain portions of the physician self-referral law (the Stark Law). These waivers relaxed restrictions on certain financial relationships.
While healthcare providers should expect and prepare for a vast array of changes, some flexibilities will remain in place even after the end of the PHE. For instance, the majority of current Medicare telehealth flexibilities will remain in place through December 31, 2024, due to the Consolidated Appropriations Act of 2023 passed by Congress in December 2022. As another example, the modified Medicare physician supervision requirements that allow the supervising physician or practitioner to be "immediately available" through "virtual presence" will be in place through the end of 2023.
Save the Date for Davis Wright Tremaine's annual healthcare regulatory and compliance seminar on March 30, 2023, in Culver City, California. In addition to the End of the Public Health Emergency, topics will include the No Surprises Act, joint ventures, developments in fraud and abuse law, healthcare technology, issues facing tax exempt organizations, and revenue and other income streams. For more information on the seminar, please contact McKenzie Conte at mckenzieconte@dwt.com.
Mark your calendars as well for our two-part webinar series, The Beginning of the End of the Public Health Emergency. Join us for part one on Tuesday, February 28th at 12pm PT to discuss upcoming HIPAA and telehealth challenges. Part two will take place on Wednesday, March 1st at 12pm PT and cover the impact that the end of the CMS and California PHE-related waivers may have on hospitals and other providers. CLE accreditation is pending for this two-part event, be sure to contact McKenzieConte@dwt.com with questions.
*Wei Wei (University of Washington School of Law) is Davis Wright Tremaine's first 2L Diversity Healthcare Law Clerk. We are pleased to have Wei join our team for the spring term.