While the future course of the COVID-19 pandemic remains uncertain, federal and state officials are considering when, and how, to unwind the remaining emergency measures taken during the initial weeks of the crisis. The following is an overview of the authorities that were invoked and the issues raised by plans to return to pre-pandemic rules and procedures.
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- The Federal PHE Declaration. Section 319 of the Public Health Service Act gives the federal Secretary of Health and Human Services (HHS) the authority to declare a public health emergency (PHE) when a severe disease or disorder has become, or threatens to become, a significant threat to citizens. PHEs remain in effect for periods of 90 days unless renewed by the secretary or affirmatively terminated before reaching the maximum allowable endpoint.
Former HHS Secretary Alex Azar issued the first PHE declaration for COVID-19 on January 31, 2020. It has been renewed eight times over the subsequent two-year period, with the latest extension approved by current HHS Secretary Xavier Becerra on January 14. Pursuant to section 319, this extension will allow the PHE to last until April 16 unless the administration chooses to end it early.
Separately, the Biden administration committed in January 2021 to provide the nation’s governors with at least 60 days advance notice of an intention to terminate the federal PHE. No such notice has been given to this point, so it is unlikely that the federal PHE will end on April 16, or before at least mid-May.
- National Emergency Declaration. In addition to invoking the PHE, in March 2020 the Trump administration declared a national emergency pursuant to the National Emergencies Act. In February, President Biden extended the emergency declaration beyond the previous expiration date of March 1, 2022. This authority gives the president more flexibility when deploying military personnel and assets, and also while establishing rules for federal employees and property.
- Access to the Emergency HHS Funding. Invoking the federal PHE provides the Secretary with access to appropriations made to the Public Health and Social Services Emergency Fund (PHSSEF), which is a flexible account that can be used for any number of priorities during a crisis. Congress has used the PHSSEF extensively during the COVID-19 pandemic to direct emergency appropriations toward high-priority efforts, including purchases of supplies for the strategic national stockpile, vaccine development and procurement, and financial stabilization of the nation’s hospitals.
- Federal Medicare, Medicaid, and CHIP Waiver Authority. A federal PHE allows the Secretary to invoke section 1135 of the Social Security Act and issue waivers of rules that otherwise would apply under Medicare, Medicaid, and the Children’s Health Insurance Program (CHIP). In general, this authority directs regulatory relief toward facilities and clinicians delivering medical services to patients. The Centers of Medicare and Medicaid Services (CMS) used section 1135 to authorize a series of “blanket waivers” for these providers that have been in place since the early days of the pandemic. Among the rules that have been temporarily set aside are those applying to reimbursement for telehealth and audio-only services; access-to-care mandates on hospital emergency rooms; and mandatory in-person oversight by physicians in Critical Access Hospitals (CAHs). When the PHE ends, so too will this more relaxed regulatory environment. After two years of operating under emergency rules, many facilities and practitioners may find the transition back to the pre-pandemic norm somewhat disruptive.
- Medicaid FMAP Increase and Suspension of Eligibility Redeterminations. The Families First Coronavirus Relief Act, enacted in March 2020, gave states a temporary increase in their Medicaid Federal Medical Assistance Percentage (FMAP) of 6.2 percentage points for the duration of the PHE, but states had to suspend monthly eligibility redeterminations to qualify for the additional financial support (all states complied with this requirement).
The effect of these provisions has been to dramatically ramp-up participation in Medicaid. As of September 2021, the combined enrollment in Medicaid and the Children’s Health Insurance Program (CHIP) reached 84.8 million, an increase of 13.6 million since the beginning of the pandemic. When the PHE ends, states will reimpose their normal procedures for determining ongoing program eligibility. The Urban Institute estimates that some 14 million people might be found ineligible for the continuation of Medicaid coverage once the PHE ends.
- Telehealth Extension. The recently enacted 2022 omnibus appropriations bill includes several telehealth extensions. In general, the more liberalized reimbursement rules that have been in place since the beginning of the pandemic will remain in effect for a period of 151 days (roughly 5 months) after the end of the federal PHE. This will allow clinicians to continue providing services to patients using video and audio-only technologies, and to get reimbursed for such services under Medicare. Further, federally qualified health centers are authorized to provide telehealth services during the period of the extension.
- State Declarations. State governments have their own separate authorities for declaring emergencies, including for public health threats. During the COVID-19 pandemic, all fifty states and the District of Columbia invoked various emergency powers which allowed the nation’s governors to react more quickly to the many contingencies that arose due to the pandemic. Beginning in mid-2021, however, several governors decided to begin phasing out their emergency powers. As of March 2022, only 20 states have emergency declarations related to the pandemic in force, and many of those that remain in effect will expire within a month or two unless extended.
While many states have moved on from the COVID-19 emergency, federal officials remain more cautious. Consequently, the federal PHE is likely to remain in place so long as there is a realistic possibility that the worst effects of the virus have not fully run their course.
James C. Capretta is a columnist for State of Reform and a senior fellow at the American Enterprise Institute.