This is important as the continuation of some of the innovations that have been implemented require a PHE being declared.

The article mentions that the CMS waivers are actually authorized under the Presidential declaration of an emergency, activating the Stafford Act.  Some of us were concerned about the potential ‘expiration’ of either declaration.

One of NAEMT’s Government Relations groups, Winning Strategies Washington, provides some commentary on that process that we’ve included in the section below the article.

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HHS will renew public health emergency

June 29, 2020 08:09 PM

RACHEL COHRS

https://www.modernhealthcare.com/government/hhs-will-renew-public-health-emergency

HHS spokesperson Michael Caputo on Monday tweeted that HHS intends to extend the COVID-19 public health emergency that is set to expire on July 25.

The extension would prolong the emergency designation by 90 days. Several payment policies and regulatory adjustments are attached to the public health emergency, so the extension is welcome news for healthcare providers.

"[HHS] expects to renew the Public Health Emergency due to COVID-19 before it expires. We have already renewed this PHE once," Caputo said.

Provider groups including the American Hospital Association have urged HHS to renew the distinction.

Some notable policies attached to the public health emergency are the Medicare inpatient 20% add-on payment for COVID-19 patients, increased federal Medicaid matching rates, requirements that insurers cover COVID-19 testing without cost-sharing, and waivers of telehealth restrictions.

Adjustments CMS made to the Medicare Shared Savings Program for accountable care organizations are also connected to the length of the public health emergency. The number of months the emergency lasts affects the amount of shared losses an ACO must pay back to CMS.

Even if HHS maintains the public health emergency, some changes the Trump administration has made to help healthcare providers are also dependent on a separate Stafford Act national emergency declaration staying active. These changes include CMS Medicaid waivers that allow bypassing some prior authorization requirements, temporarily enrolling out-of-state providers, delivering care in alternative settings, and pausing fair hearing requests and appeal times.

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From Winning Strategies:

The National Emergency declared by the President does not have a set expiration. A national emergency issued pursuant to the NEA can be terminated by a subsequent presidential proclamation or by a joint resolution of Congress.

 

Please see below a few more details in the situation. 

 

Charla

 

A top spokesman for HHS tweeted Monday night the department "expects to renew" the public health emergency for COVID-19 currently set to expire at the end of next month.

 

HHS did not respond to requests for further comment Tuesday morning. No official statement from the department has addressed the issue, but the tweet from Michael Caputo uses the official account of the HHS assistant secretary for public affairs.

 

Extending the emergency will allow providers to continue to use flexibilities and waivers meant to help them respond to the COVID-19 pandemic, including those that promote the use of telehealth and adjust requirements for CMS value-based payment models.

 

There are two emergencies currently in effect:

• The first one, a Public Health Emergency issued pursuant to Section 319 of the Public Health Services Act, is a Public Health Emergency initially issued by HHS Secretary Azar on January 31, 2020.   The PHS was extended by Secretary Azar on April 21, renewed effectively on April 26, 2020. This PHE is set to expire on July 25. 

 

• The second one is the President's declaration under the National Emergencies Act pursuant to Section 501(b) of the Stafford Disaster Relief and Emergency Assistance Act, issued on March 13, 2020. But the National Emergency declared by the President does not have a set expiration. A national emergency issued pursuant to the NEA can be terminated by a subsequent presidential proclamation or by a joint resolution of Congress. https://www.lawfareblog.com/whats-trumps-national-emergency-announcement-covid-19

 

The PHE declaration by the Secretary is not contingent on a Presidential NEA declaration.

 

The question is what HHS related waivers are tied to which Emergency Declaration, Sec. Azar’s PHE or the President's NEA. 

• The 1135 Medicaid waivers, both individual and blanket waivers, issued by HHS need BOTH the National Emergency and the Public Health Emergency declarations. 
• The CARES Act had provisions about telehealth that are linked to the duration of the PHE.  So, some of the telehealth flexibilities are linked only to the PHE and others need both types of declaration to continue.
• • However, there is a special dispensation in the CARES statute that ties the telehealth-related waivers specifically to the public health emergency for Covid-19. (See (g)(1)(B) of SSA Section 1135).
  • Azar could probably keep extending the Covid-19 public health emergency declaration for 90-days at a time and keep the telehealth-related waivers in effect. The other 1135 waivers likely would expire if/when POTUS ends the national emergency declaration, but telehealth is a special case.
• The NEA permits FEMA to provide assistance under Sections 502 and 503 of the Stafford Act, which describe the scope and amount of federal emergency assistance. The declaration also instructs the FEMA administrator to coordinate and direct other federal agencies in providing assistance under the Stafford Act.