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What's at stake when the health emergency ends

Jan 24, 2023
Illustration of a health plus with a cross-out symbol as its shadow.

Illustration: Eniola Odetunde/Axios

For nearly three years, CMS has given providers leeway on everything from reporting requirements to physical environment standards to patients’ rights during the COVID-19 public health emergency.

Why it matters: Some of those flexibilities have already been extended — but unless Congress or CMS renews the others, providers will have to go back to the pre-COVID-19 status quo when the public health emergency ends.

  • Congress already extended high-profile telehealth and Hospital-at-Home flexibilities beyond the PHE, and CMS has rolled back a few waivers itself. But plenty of other policies will expire with the emergency designation.

Driving the news: Biden administration officials are angling to end the PHE as soon as April, Politico reported earlier this month.

  • The designation could end even earlier if Rep. Brett Guthrie has his way. He introduced a bill last week that would stop the designation and require HHS to release a plan for unwinding the emergency.
  • "[P]resident Biden keeps our country under a perpetual state of emergency and continues to use COVID-19 to justify bypassing Congress to enact his agenda and pushing vaccine and mask mandates on the American people," Guthrie said in an email statement to Axios.
  • His spokesperson said that Guthrie plans to reintroduce a bill to temporarily extend a PHE policy that allows short-term nurse aides to use on-the-job training in nursing homes toward becoming a certified nursing assistant. (CMS discontinued this waiver last year.)

The details: PHE policies go way beyond telehealth. CMS has a 47-page list of blanket waivers that have been in effect during the emergency — and that doesn’t even include waivers requested on a case-by-case basis.

  • Many policies ease administrative requirements for providers, like the need for hospitals to write down who can perform respiratory care procedures, and the amount of time physicians have to complete medical records once a patient is discharged.
  • Others loosen program participation requirements, expand the scope of practice for non-physician providers, and create exceptions to the physician self-referral law when dealing with COVID-19.

The big question: How many providers still use these lesser-known flexibilities?

  • There isn’t good data available on this yet, said Soumi Saha, senior vice president of government affairs at the health care improvement company Premier Inc.
  • Because of the lack of data, Premier launched a survey of its members on Sunday to find out which waivers have been most helpful, whether members have planned for phasing out the use of the waivers, and which flexibilities they'd want in future emergencies.
  • HHS has made it clear that how providers continue to leverage PHE waivers and flexibility will play a key role in whether the PHE is extended beyond April, Saha wrote in a newsletter to members Sunday night.

What we’re hearing: Providers are starting to talk about what they want to see extended or made permanent when the PHE goes away.

  • The American Hospital Association sent Axios a list of policies it wants to be permanent, including pathologists’ ability to review slides remotely, latitude on verbal orders in hospitals, and increased bed capacity for rural hospitals in emergencies.
  • The American Health Care Association/National Center for Assisted Living wants permanent flexibility for a requirement — currently waived — that patients have a three-day inpatient stay before a Medicare-covered, post-hospital nursing home visit.
  • Policymakers also haven't fully addressed questions of payment parity for telehealth services after the PHE, noted Claire Ernst, the Medical Group Management Association’s director of government affairs.

Our thought bubble: Providers won't be able to keep every pandemic flexibility once the PHE ends, but easing out of the waivers could prove difficult. They’re unlikely to let everything lapse without a fight.

  • Watch for debate in Congress this year about which policies to keep going in "normal" times, and guidance from CMS on how unwinding the PHE will actually work.
  • CMS couldn't get back to Axios with a comment in time for this newsletter, but we'll let you know when we hear from the agency.
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