The Centers for Medicare & Medicaid Services (CMS) issued more than 100 waivers during the COVID-19 pandemic, giving providers much-needed flexibility to meet unprecedented demands on the healthcare system. CMS’s ability to issue these waivers and the waivers’ duration both depend on a complex interplay between long-standing and newly granted statutory and regulatory mechanisms.
Many of these waivers can only continue if either the President’s national emergency declaration or the Secretary of Health and Human Services’ (HHS’s) public health emergency (PHE) declaration remains in effect, or both do so. Under current extensions, the national emergency declaration will expire on March 1, 2023, and the PHE declaration will expire on July 16, 2022. The Administration has committed to providing a 60-day notice before halting the PHE, and therefore stakeholders should expect to learn about whether the PHE will be renewed by May 16, 2022. The extension of the PHE depends on several factors, including the pandemic’s status, hospital and provider need, and whether the Administration believes the flexibilities discussed in this +Insight are still necessary to address the pandemic’s changing dynamics.
As policymakers prepare for the potential end of the PHE, stakeholders need to know how and when these flexibilities could end. This article reviews relevant waiver authorities and analyzes what will likely occur when these emergency declarations end, with an emphasis on provider-focused flexibilities, including specific information on telehealth flexibilities. While most CMS flexibilities are tied to the PHE, notable exceptions are highlighted below. If important flexibilities warrant extension beyond the PHE or the national health emergency, providers should work with the Administration and Congress on those efforts now.
For more information contact: Debbie Curtis, Mara McDermott, Rachel Stauffer, Lauren Knizner or Sandy DiVarco (McDermott Will & Emery – Partner).
