The PHE Update

The renewal of the PHE indicates that a public health emergency (PHE) exists.

As expected, the COVID-19 PHE (Public Health Emergency) was extended for the 11^th time, on October 13^th, 2022, another 90-days, which will extend many of the CARES Act 1135 Waivers through January 11^th, 2023.

This extension confuses many healthcare professionals because in a 60-Minutes news interview, President Joe Biden, stated, that the “pandemic is over.” So if this is the case, then why was there another extension a month after that show aired, and why was there not a formal announcement last week (60-day notice), that this will be the last renewal?

This is a question that needs to be answered.

The Centers for Medicare & Medicaid Services (CMS) has already alerted providers that many nursing home compliance standards have phased out, while still protecting those residents. Only 11 States still have a PHE in place, while the other 39 states have lifted their PHE mandates or let them expire.

An example is in Florida, where Expiration of Emergency Order 20-002 and Emergency Order 20-003 related to COVID-19 expired on June 26, 2021. The expiration of these orders impacted the following services that were temporarily authorized in the state of Florida during the PHE in 2020 through June of 2021, over a year ago, these expired:

• Out-of-state health care practitioners are no longer authorized to render services for patients in Florida unless they become licensed to practice in Florida, except as specified in the HHS Guidance Memorandum Dated 3/12/2021, regarding vaccine administration.
• Out-of-state health care practitioners are no longer authorized to perform telehealth services for patients in Florida unless they become licensed or registered in Florida.
• Qualified physicians are required to conduct an in-person physical examination to issue a physician certification for any patient.
• Controlled substance prescribers are required to conduct an in-person physical examination to issue a renewal prescription for a controlled substance.

As I mentioned, many other states also let these Executive Orders and PHE waivers expire. This means that physicians providing service via Telehealth for patients, not in their home state, would have to be licensed in the state they are performing these services, or where the patient is located.

Is this Political? Yes.

On Tuesday night, Nov, 15, quietly, the Senate voted in a bipartisan fashion of 62-36 to end President Joe Biden’s pandemic emergency, with Sens. Ben Sasse (R-NE) and Raphael Warnock (D-GA) not voting.

The latest extension came less than a month after the president himself said during a “60 Minutes” interview that “the pandemic is over.”

This Joint Resolution, (S.J. Res 63) passed the Senate.

Not only did every Republican senator vote to end the PHE, -other than Sasse, who did not vote–so did 12 Democrats, as well as Sen. Angus King (I-ME), who caucuses with the Democrats. 

The resolution was brought forward by Sen. Roger Marshall, M.D. (R-KS), who on the Senate floor, referenced the president’s remarks. It’s not merely the hypocrisy that is an issue though, as the senator highlighted in his speech.

“It was this government imposed state of emergency that justified their continued lockdowns of small businesses and schools… that justified their mask and vaccine mandates, including a military vaccine mandate that has resulted in the removal of more than 8,000 active-duty troops… that justified President Biden and Congressional Democrats spending binge, increasing the total amount of government spending by more than $9 trillion since February 2021 and lighting the fire for record inflation… that the president has used as justification to extend the payment pause and cancel up to $10,000 in outstanding federally held student loan balances, and even a more generous $20,000 for Pell Grant recipient,” Marshall highlighted. 

“Congress must take the responsible action of reigning in this massive expansion of government and restore Americans fundamental rights by terminating the COVID-19 national emergency declaration,” he continued to note. 

Continuing the PHE, when no Public Health Emergency exists, per the Social Security Act definition, also has major fiscal concerns for this country. We cannot continue to use the PHE as a budgetary “fix” to continue to fund programs that are not tied directly to a PHE.

Based on a recent, CNBC news report, on November 11^th,  the U.S. may extend the COVID-19 public health emergency past January 11, 2023, which is what prompted this Senate Resolution.

A 12th extension of the PHE since the first in January 2020, is likely, because of a lack of public statement from HHS warning about a termination. The agency (HHS), told states it would provide a notice 60 days before if it did decides to end it, or on Nov. 11^th. There was no posted statement.

As of now, Medicare Telehealth Flexibility’s will end 151 days after the PHE expires. This allows for some flexibility’s like Telehealth to not be tied to a PHE, but to be reviewed for 5 months to determine if a permanency of many of the PHE policies should continue. In July, the House passed The Advancing Telehealth Beyond COVID-19 Act, but the legislation must still be approved by the Senate for Medicare patients to continue using telehealth through 2024. Also, with a new House and Senate just put in place, this Act may be delayed for months.

In addition, the end of the PHE will trigger a Medicaid redetermination process that will cause a major disenrollment of beneficiaries. Over the course of about a year, HHS estimates up to 15 million people could lose health coverage. But again, during a pandemic it was important not to disrupt Medicaid coverage. Once the pandemic is over, and by all means it is, Medicaid beneficiaries must be approved for coverage, be eligible or the system could bankrupt.

The PHE also has implications for healthcare workers with the November 2021 vaccine mandates still in place, but a coalition of 22 states has filed a petition seeking to repeal the Biden Administration’s rule that requires employees to be vaccinated against COVID-19 if they work in healthcare facilities that receive Medicare and/or Medicaid funding.

Per Becker’s Health Hospital Blog, the petition, filed under the Administrative Procedures Act, the attorneys general request that CMS withdraw its vaccine mandate for healthcare workers and all related guidance, citing the most recent pandemic circumstances.

Just over a year ago, CMS rushed to impose the [vaccine rule]. And it relied on a purported emergency — the rapid spread of the Delta variant —to sidestep the Administrative Procedure Act’s notice-and-comment requirements, even though it was unsure if the vaccines would prevent transmission, the petition states. “But evidence available at that time, and evidence that has emerged since, demonstrates that full vaccination doesn’t prevent infection or transmission. Delta is long gone, replaced by the milder, more transmissible Omicron variant, which is even more resistant to vaccines. Breakthrough infections are common. And to make matters worse, studies increasingly show heightened health risks associated with the vaccines. Yet the outdated emergency [rule] remains in force.”

The petition also contends that the vaccine rule intensified staffing shortages at healthcare facilities, resulting in reduced risk of patients contracting the virus but also limiting many patients’ access to needed care.

A CMS spokesperson told Becker’s the agency “is aware of the states’ petition for rulemaking and will conduct a review that is consistent with its legal obligations. Since many of the states that filed the petition are plaintiffs in ongoing lawsuits seeking to overturn the vaccine rule, CMS will not comment further.”

The PHE is not just about extending telehealth, there are far-reaching mandates and limitations for healthcare entities and patient’s access to care if there is not an end date in sight.

References:

https://aspr.hhs.gov/legal/PHE/Pages/covid19-15jul2022.aspx

https://www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicy-and-memos-states-and/update-covid-19-emergency-declaration-blanket-waivers-specific-providers

Senator Marshall’s Resolution to End COVID National Emergency Declaration Overwhelmingly Passes Senate – Senator Roger Marshall