Summary
Wynne Health Group (WHG) has compiled a chart that delineates a comprehensive set of temporary flexibilities pursuant to the COVID-19 public health emergency (PHE). Under current PHE conditions, the U.S. Department of Health and Human Services (HHS) is authorized under section 1135 of the Social Security Act to waive a range of Medicare and Medicaid requirements as a means for responding to public health emergencies. During this current PHE, HHS has waived several requirements enabling the health care system to respond more swiftly to the evolving pandemic. In brief, we capture flexibilities across the following domains:
- Medicare telehealth flexibilities (p. 2);
- Emergency Use Authorizations (EUAs) and vaccines (p. 4);
- Health care provider flexibilities (p. 5);
- Medicaid federal medical assistance percentage (FMAP) increases (p. 17);
- Medicaid continuous coverage/redetermination (p. 18);
- Medicaid home- and community-based services (HCBS) waivers (p. 19);
- Medicaid long-term services and supports (LTSS) flexibilities (p. 20);
- Medicaid reimbursement increases (p. 20);
- Other Medicaid flexibilities (p. 21);
- Nutrition flexibilities (p. 26); and
- Housing flexibilities (p. 27).
As it stands now, except for those which Congress or the Administration have specifically addressed in legislation or regulation, most PHE flexibilities will expire once the PHE declaration ends. Currently, there is uncertainty about when the PHE will end. HHS has vowed to give states a 60-day notice to states prior to the end of the COVID-19 PHE – i.e., terminating the PHE or allowing the PHE to expire. While the PHE is currently set to end on April 16, HHS did not give notice that it intends to let the PHE expire, so we anticipate it will extend the PHE at least one more time until July 15. Given this, we would expect HHS to give notice by May 16 if it plans to end the PHE in July. If it does not, we can expect HHS Secretary Becerra to extend the PHE another 90 days to October 13.
Many of these flexibilities have been in place since the early months of the pandemic and have reshaped the way health care providers and others deliver care in the United States. As a result, many are deliberating on the extent to which federal policymakers should permit certain flexibilities to continue beyond the PHE. While the Medicare telehealth flexibilities have gained considerable attention with respect to the end of the PHE, many other critical flexibilities will also cease to be in effect once the PHE ends, including several across many different elements of Medicaid (while we outline these Medicaid flexibilities in the attached, additional detail is available here).
To support these efforts, we display the range of PHE flexibilities currently in place and their end dates relative to the current PHE authorities. We also briefly indicate whether these flexibilities would require legislative or regulatory changes in order to be made permanent.