Groundhog Day? HHS Silence Indicates PHE Expansion Is Coming – Health Law Analysis


Does the COVID-19 pandemic remind you a bit of Bill Murray in Groundhog Day? Although most aspects of life have returned to the “new normal,” the federal government remains in a seemingly endless cycle of regulatory uncertainty.

Once again, the US Department of Health and Human Services (HHS) is set to extend the Federal Public Health Emergency (PHE) COVID-19, this time through 2023. This latest extension will have major ramifications on Medicare telehealth policies if the Centers for Medicare & Medicaid Services (CMS) takes no further action. While CMS has begun to imagine a life without PHE, as a recent blog post titled “Creating a roadmap for ending the COVID-19 public health emergency” indicates, there is no indication that the PHE is in fact nearing its end.

HHS is committed to providing stakeholders and states with at least 60 days notice before terminating the PHE in order to prepare for the implications of ending this period. On August 16, 2022, this deadline (albeit self-imposed) has come and gone with no indication from HHS that the PHE will end on October 15, 2022. As it has done in several previous instances, HHS will likely issue an official extension from early to mid-October, just days before the current scheduled expiration. Another 90-day extension would bring the PHE to mid-January 2023.

But this last extension will have a special meaning. Multiple HHS and CMS flexibilities must expire “in the year in which the PHE ends.” Crossing the line on December 31 will effectively extend these flexibilities for an entire additional calendar year, unless CMS revises its regulations to reflect an earlier sunset period.

While this is indeed good news for many providers, some are becoming increasingly concerned about the continued delay in developing permanent telehealth policies and its impact on their long-term strategies. term and their growth opportunities. Although Congress has made progress in passing legislation to expand telehealth, we still do not have clear direction on what virtual care services will be allowed in the future and how which they will be covered. And without a better understanding of what healthcare will look like in five to 10 years, investors have been reluctant to invest all their capital in virtual care offerings.

The healthcare community has developed significant data on the use and cost of telehealth services, even outside of the early days of the pandemic, which may not adequately represent standard healthcare services. Congress, together with regulators, the Congressional Budget Office, and industry stakeholders, should consider an ongoing virtual care adoption strategy so the medical community can develop a realistic path to before.


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