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The Secretary of the Dept. of Health and Human Services declared a public health emergency (PHE) in January 2020. The authority for this declaration is found in Section 319 of the Public Health Service Act, and it allows the Secretary to suspend or amend various regulations to facilitate responses to the emergency.

First, recall two administrations have been involved with the PHE. Secretary Alex Azar, who served during the Trump Administration, issued the first emergency declaration in early 2020, followed by President Trump’s declaration of an emergency in accordance with the provisions of the National Emergencies Act. Secretary Xavier Becerra, the current HHS Secretary, has continued to extend the PHE. The current extension expires this month but will certainly be extended one more time for 90 days, as President Biden promised to give states at least 60-days’ notice before ending the emergency.

The declaration of a PHE can temporarily suspend rules and alter payment systems and eligibility criteria. The end of the emergency sets the rules back to the status quo ante the pandemic. However, it’s not an all-or-nothing situation. Already, the Secretary of HHS has reinstated some of the provisions of regulations that were waived earlier.

Let’s consider some of the most relevant effects of the various emergency declarations, what they achieved, and how their expiration might impact our healthcare system.

Medicaid Provisions

One of the most important provisions of the PHE declaration has been to ensure universal coverage of testing and vaccination against the COVID-19 virus by requiring Medicaid to make testing and immunization available at no cost to the member. The provision applies to Medicaid recipients as well as uninsured people who can access testing and vaccination through Medicaid. When the PHE expires, individual states can maintain this benefit, but the uninsured will no longer have mandated access to free testing and immunization.

During the PHE, states receive an additional Medicaid subsidy in the form of an enhanced Federal Medical Assistance Percentage of 6.2 percent. This subsidy ends on the last day of the calendar quarter in which the PHE expires. The emergency also requires states to maintain Medicaid eligibility continually throughout the duration of the PHE. When the PHE expires, people who no longer qualify for Medicaid may be terminated from the program.

Medicare Provisions

As with Medicaid, Medicare beneficiaries have access to no-cost testing and immunization during the PHE. With the expiration of the PHE, the continuation of this benefit may not be available, depending on the plan under which the beneficiary is covered.

Telehealth has been expanded in Medicare under the PHE with more services being made available than are normally provided. The benefit has proven very popular, and Congress has passed legislation in the form of Consolidated Appropriations Act, 2021 extending the availability of telehealth for Medicare beneficiaries to 151 days following the end of the PHE.

Provisions Affecting Long-Term Care

Under Medicare Part A, access to coverage in a SNF is contingent on a minimum 72-hour stay in an acute-care hospital. The PHE suspended that requirement.

In the early stages of the PHE, CMS suspended normal facility surveys in favor of focusing on infection control procedures. The agency also suspended the requirements for training for nursing assistants for nursing homes. Both provisions have been reinstated by CMS due to concerns that they had outlived their usefulness.

There are several other specific LTC requirements that were part of the initial waivers that have since been terminated. CMS maintains a list of these that are helpful in keeping up to date.

Important Pharmacy Provision

CMS used its authority under Section 1135 of the Social Security Act to expand the number and types of health professionals authorized to provide testing and immunizations against COVID-19. The waiver allows pharmacies to administer COVID-19 vaccine and influenza vaccine to nursing home residents and to bill CMS directly for these services.

CMS has not, as of now, rescinded this waiver, and professional and trade associations, including ASCP, have been actively encouraging them to maintain it at least through the 2022-23 flu season. Please contact ASCP and your state pharmacy association to indicate your strong support for this provision.

Additional Resources

What Happens When COVID-19 Emergency Declarations End? Implications for Coverage, Costs, and Access

Creating a Roadmap for the End of the COVID-19 Public Health Emergency

SNF: Enforcement Discretion Relating to Certain Pharmacy Billing

X Factors for the End of the Public Health Emergency

  • Stay updated on CMS plans via its website.
  • Communicate with your customers to see how they will respond and how you’ll fit in.
  • Stay engaged with professional and trade groups to preserve pharmacists’ ability to immunize.

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Written by: Paul Baldwin, Baldwin Health Policy Group
Paul’s pharmaceutical industry experience in public and government affairs led to becoming Executive Director of the Long Term Care Pharmacy Alliance, helping lead the industry through the Medicare Modernization Act and creation of the prescription drug benefit. Paul was VP of Public Affairs for Omnicare before founding Baldwin Health Policy Group.

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