What are the issues when the public health emergency ends

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

Why is it important: Some of these flexibilities have already been extended – but unless Congress or CMS renews the others, providers will have to return to the pre-COVID-19 status quo when the public health emergency ends.

  • Congress has already extended high-level telehealth and home hospital flexibilities beyond the PHE, and CMS itself has rolled back a few waivers. But many other policies will expire with the emergency designation.

Driving the news: Biden administration officials plan to end PHE as early as April, Politico reported earlier this month.

  • The designation could end even sooner if Representative Brett Guthrie has his way. He introduced a bill last week that would end the designation and require HHS to publish a plan for resolving the emergency.
  • “[P]Resident Biden is keeping our country under a perpetual state of emergency and continues to use COVID-19 to justify bypassing Congress to enact his agenda and impose vaccine and mask mandates on the American people,” Guthrie said in an e-mail statement to Axios.
  • Her spokesperson said Guthrie plans to reintroduce a bill to temporarily extend a PHE policy that allows short-term nurse aides to use nursing home on-the-job training to become a certified nursing assistant. (CMS ended this waiver last year.)

The details: PHE policies go well beyond telehealth. CMS has a 47-page list of general 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, such as the need for hospitals to note who can perform respiratory care procedures and the time physicians have to complete medical records once a patient is discharged.
  • Others are relaxing program participation requirements, expanding the scope of practice for non-physician providers, and creating exceptions to the law on physician self-referral when it comes to 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 healthcare improvement firm Premier Inc.
  • Due to the lack of data, Premier on Sunday launched a survey of its members to find out which waivers have been most helpful, whether members have plans to phase out the use of waivers and what flexibilities they would like in future emergencies.
  • HHS has made it clear that how providers continue to take advantage of PHE waivers and flexibility will play a key role in extending PHE beyond April, Saha wrote in a newsletter to members Sunday evening.

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

  • The American Hospital Association has sent Axios a list of policies it wants to make permanent, including the ability for pathologists to examine slides remotely, latitude on verbal orders in hospitals, and increased capacity in emergency rural hospital beds.
  • The American Health Care Association/National Center for Assisted Living wants permanent flexibility for a requirement — currently waived — that patients must remain hospitalized for three days before a Medicare-covered post-hospital nursing home visit.
  • Policymakers have also not fully addressed issues of pay parity for telehealth services after the PHE, noted Claire Ernst, director of government affairs for the Medical Group Management Association.

Our thought bubble: Suppliers won’t be able to retain all pandemic flexibilities once the PHE is over, but easing waivers could prove difficult. They are unlikely to drop everything without a fight.

  • Watch for debate in Congress this year on what policies to maintain in “normal” times and advice from CMS on how the PHE rollout will actually work.
  • CMS was unable to respond to Axios with a comment in time for this newsletter, but we’ll let you know when we hear from the agency.
What are the issues when the public health emergency ends

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