Health Law Scan

Legal Insights and Perspectives for the Healthcare Industry

The federal COVID-19 public health emergency’s (PHE) current expiration date is just one week away—July 14, 2022. While no official extension has been issued by the Biden-Harris administration yet, it is increasingly likely that the PHE will be extended for at least another 90 days. Previously, the federal government had pledged to states that it would announce an end to the PHE at least 60 days before its expiration. That 60-day time frame ended on May 16 with no indication from the US Department of Health and Human Services (HHS) that it was anticipating the end of the PHE.

With a recent rise in omicron variant cases and continuing pressure from healthcare providers and consumer advocacy groups to maintain flexibilities, the federal government remains pressed to further extend the PHE. This position is particularly untenable, as federal legislation to maintain certain telehealth flexibilities on a semi-permanent basis has stalled in Congress. While the federal government could, from a legal perspective, forgo its pledge to states of a 60-day notice, it is unlikely that it would do so, given the potential chaos in the healthcare market that could ensue. In addition, while the federal government could end the PHE at any time, it has previously extended the PHE uniformly for 90-day periods, and there is little reason for it to change course or end the PHE in the middle of a 90-day period.

For healthcare providers, this means that COVID-19 telehealth flexibilities will likely remain until at least October 2022. In addition, those flexibilities that were extended for an additional 151 days as part of the Consolidated Appropriations Act of 2022 will now expire in March of 2023 if the PHE is not renewed again. Congress continues to consider several bills that will enhance the ability to provide virtual care services, but these bills do not appear up for a vote soon. The extension of the PHE, while perhaps pushing off permanent adoption of a telehealth solution, will provide additional time for providers who have been relying on these flexibilities to continue to develop permanent policies and operational workflows as the industry moves into the “new normal.”

Please contact us if you have any questions on congressional legislation or implementing effective telehealth policies and procedures.