Health Law Scan

Legal Insights and Perspectives for the Healthcare Industry

Much to the relief of the healthcare provider community, US Department of Health and Human Services (HHS) spokesperson Michael Caputo tweeted on Monday that HHS intended to extend the public health emergency that was declared earlier this year.

The HHS Secretary may determine that a disease or significant infection disease outbreak is a public health emergency according to Section 319 of the Public Health Services Act. Secretary Alex Azar initially used this power to declare a public health emergency on January 31, 2020 and renewed that declaration on April 21, 2020. That renewal is set to expire on July 25, 2020, and many were concerned that the administration would not renew the public health declaration upon its expiration. The extension announced by Mr. Caputo would prolong the designation for an additional 90-day period.

Notable and critical polices tied to the declaration include the 20% add-on payment for providing services to coronavirus (COVID-19) patients in Medicare, relaxation of telehealth restrictions and the supplemental Medicaid matching rate, and the requirement that insurers cover COVID-19 testing.

While the public health emergency declaration is one important component to the many flexibilities and changes allowing healthcare providers to manage care during the pandemic, the president’s Stafford Act Emergency Declaration is another component that paves the way for many of the CMS waivers that have been issued, allowing providers and other healthcare entities to provide care. That declaration sits within the purview of the president who can proclaim the emergency over at any point, or allow the declaration to expire on its own accord one year from its original date.

We will continue to monitor developments with regard to COVID-19 waivers and flexibilities.