The Biden Administration has announced that the declared national public health emergency (PHE) for COVID-19 will end on May 11, 2023. This move comes more than three years following the first declaration of the PHE by the previous administration on March 13, 2020. These declarations have allowed the federal government to provide additional resources and funding to help states respond to the crisis, including allowing for government flexibility in Medicare, Medicaid, CHIP, and commercial insurance, often in the form of waived statutory and regulatory requirements.

By the spring of 2024, most of the flexibilities impacting Medicare, Medicaid, access to telehealth, private insurance coverage, access to vaccines and treatment, provider immunity, data reporting, and dispensing of controlled substances will be phased out. The below summary provides an overview of the major changes to come in these key areas.

What is Ending and What Remains:

  • Waivers and Administrative Flexibilities
    • CMS blanket emergency waivers to expand health care capacity will end with the end of the PHE on May 11, 2023, affecting hospitals and nursing homes.
    • The Acute Hospital Care at Home initiative has been extended through December 31, 2024 under the Consolidated Appropriations Act, 2023.
  • Medicaid Continuous Enrollment Condition
    • Under Consolidated Appropriations Act, 2023, the continuous enrollment condition will end on March 31, 2023.
  • Access to Telehealth
    • Waivers of state licensing requirements, HIPAA waivers for certain technologies, and certain flexibilities in reimbursement policies will be transitioned out in the 90 days following the end of the PHE May 11, 2023.
    • For Medicare enrollees, the Consolidated Appropriations Act, 2023, extended many telehealth flexibilities through December 31, 2024 (e.g, audio-only visits, home-based telehealth).
    • Medicaid and CHIP telehealth coverage will vary by state. In Washington, the Health Care Authority’s Telehealth Policy remains unaffected.
  • Private insurance coverage flexibilities
    • Waived cost-sharing for COVID-19 testing and treatment, including hospitalizations, in-network provider visits, and telehealth visits related to COVID-19 under FFCRA and the CARES Act will be phased out by the last day of the first calendar quarter that begins one year after the last day of the COVID-19 PHE.
    • Grace periods for delayed premium payments will end on August 9, 2023.
  • Vaccines, Testing, and Treatments
    • Access to COVID-19 vaccines, testing, and treatments for Medicare enrollees will generally be unaffected, however, benefits for free over-the-counter tests for Part B enrollees will end with the end of the PHE on May 11.
    • Medicaid and CHIP coverage for COVID-19 vaccines, testing, and treatments will vary by state when the mandatory coverage requirement under the American Rescue Plan Act of 2021 (ARPA) ends on September 30, 2024.
    • For commercial insures, mandatory coverage for over-the counter and laboratory-based COVID-19 PCR and antigen tests will end with the end of the PHE on May 11, 2023.
  • Liability immunity to administer medical countermeasures under the Public Readiness and Emergency Preparedness (PREP) Act
    • Liability immunity for certain individuals and entities involved in the administration of medical countermeasures during a public health emergency, including manufacturers, distributors, program planners, and qualified persons who prescribe, administer, or dispense covered countermeasures may be impacted where not explicitly covered by the PREP Act.
  • Hospital Reporting
    • Hospital data reporting will continue to be required by the CMS conditions of participation through April 30, 2024.
  • Dispensing of Controlled Substances
    • The Drug Enforcement Administration (DEA) is planning to initiate rulemaking focused on extending flexibilities to allow certain practitioners to prescribe controlled substances via telehealth.

The official end of the national PHE may require health care facilities and providers to implement additional changes to transition away from COVID waivers and ensure all licensing and legal requirements are in compliance. In Washington state, the state-specific declaration of emergency was previously lifted in October 2022, and the final health-care related order, the statewide face covering mandate, ended April 3, 2023.

Ogden Murphey Wallace’s Health Care practice group will continue to monitor developments in COVID-19 policies and legal implications that will affect health care facilities and providers to offer guidance. For more information regarding the end of the national COVID-19 PHE, see the COVID-19 Public Health Emergency Transition Roadmap released by the U.S. Department of Health and Human Services.

This update is a summary of a complex topic that is subject to change at any time and should not be relied upon in lieu of legal advice. If you have any questions or require guidance, please contact Lee Kuo or Adriana Lein.