Bloomberg Law
Free Newsletter Sign Up
Login
BROWSE
Bloomberg Law
Welcome
Login
Advanced Search Go
Free Newsletter Sign Up

Medicaid, Telehealth Future: Ending Covid Emergency Explained

Oct. 12, 2022, 8:48 AMUpdated: Oct. 14, 2022, 7:06 PM

Millions of Americans’ Medicaid coverage and remote health-care services are among the items that will be cast into limbo once the Covid-19 public emergency comes to an end. But with a recent renewal, the Biden administration has allowed more time to work out any potential changes.

The public health emergency has enabled the government to ease the way for Americans to obtain government health insurance, helped it approve drugs and treatment for public use at breakneck speed, and allowed it to tap into other emergency powers to help Americans weather the worst of the pandemic.

The Health and Human Services Department first declared the PHE in 2020 and has renewed it for 90-day periods since then, most recently on Oct. 13. The Biden administration is expected to give two months’ notice before letting the PHE expire.

Republicans in Congress have been pushing the administration to relinquish its emergency powers in the wake of President Joe Biden’s remark in September that the pandemic is “over.” Sen. Richard Burr (R-N.C.) recently sent a letterto the president stating that "[w]ithout a clear plan to wind down pandemic-era policies, the deficit will continue to balloon and the effectiveness of public health measures will wane as the American people continue to be confused by mixed messages and distrust of federal officials.”

1. Will people with Medicaid lose coverage?

Medicaid enrollment increased by over 17 million from February 2020 to May of this year. That’s at least in part due to 2020’s Families First Coronavirus Response Act, which required state Medicaid programs to keep beneficiaries enrolled through the duration of the pandemic.

But once the PHE draws to a close, states will start to re-evaluate who gets to keep coverage, meaning millions of individuals could lose their benefits.

Estimates of the number potentially affected vary.

The Kaiser Family Foundation said the number of people that could be disenrolled is “highly uncertain.” Nevertheless, the group estimated that the actual amount would be somewhere between 5.3 million and 14.2 million during the 12 months in which state agencies review Medicaid eligibility, as required by the Centers for Medicare & Medicaid Services.

The HHS itself took a stab at estimating how many individuals in the Medicaid and Children’s Health Insurance Program stand to lose their coverage, pegging the rate at 17.4% of enrollees, or 15 million people.

One potential solution floated by the Commonwealth Fund is for Congress to make states gradually conduct Medicaid eligibility redeterminations and “phase down Medicaid matching funds rather than eliminate them immediately.”

VIDEO: Telehealth Is Booming During Covid. Is it Here to Stay? (Aired June 23, 2020)

2. What’s in store for telehealth providers?

To say telehealth services rose during the pandemic is a bit of an understatement.

Prior to the Covid era, telehealth accounted for less than 1% of outpatient care, according to the Kaiser Family Foundation. Telehealth services have since surged, at their peak accounting for 40% of outpatient visits for mental health and substance use.

Part of that increase in popularity is due to the HHS’s waiver of privacy rules for the Health Insurance Portability and Accountability Act of 1996, or HIPAA.

During the PHE, health providers transmitting sensitive electronic health records were exempt from HIPAA rules, greenlighting medical professionals to use online communication platforms like Zoom to treat patients.

The HHS has already given a heads-up to telehealth providers on the post-pandemic state of telehealth. The agency in June issued guidance explaining how providers can continue providing “audio-only telehealth services” in line with HIPAA requirements.

The House has made a move to extend telehealth flexibilities into 2024 by voting in favor of H.R. 4040. That effort, however, has yet to pass the Senate.

3. How will nursing home staff be affected?

Over 240,000 caregivers have left their posts at nursing homes since the onset of the pandemic, according to the American Health Care Association and National Center for Assisted Living.

In maneuvering to help nursing homes maintain employees during the health crisis, the Trump administration waived certain requirements for nursing staff, though a number of pre-pandemic training and health-care requirements have since been reinstated.

Yet as the PHE churns on, some uncertified nursing aides still need to complete mandatory federal training requirements to better care for residents.

Oct. 7 marked the previous deadline for completing the 75 hours of training and state certification test. But in August, the Centers for Medicare & Medicaid Services offered up guidance to give nursing homes more breathing room to get their staff in order. The guidance is far from a broad waiver for training requirements for nurse aides. Rather, states and their individual facilities can request waivers from the CMS.

How much breathing room the nursing homes get ultimately rests with the HHS. That’s because the deadline for meeting the training requirements is the end of the public health emergency.

4. What about emergency-use Covid products?

Vaccines, therapies, you name it. The tools to treat Covid-19 were spurred by Food and Drug Administration emergency use authorizations, or EUAs as they’re known.

EUAs basically allow the FDA to fast-track a product to market without the years-long FDA product approval process. Hundreds of these were granted by the FDA during the pandemic, including mRNA jabs from Pfizer and Moderna that later achieved full FDA approval.

But what about other products brought to market under an EUA? Will they be revoked once the PHE comes to an end?

The answer is no, not quite. That’s because the PHE and EUA declarations are separate.

The HHS’s distinction of a PHE exists under the Public Health Service Act. EUAs, meanwhile, come under the Federal Food, Drug and Cosmetic Act, and need to be justified by a public health emergency. For Covid, this justification came in February 2020.

In light of the FD&C Act declaration, the HHS has put our four EUA declarations. Those are for personal respiratory protective devices, drugs and biological products, medical devices, and in vitro diagnostics.

Should those EUA declarations be terminated—which is not contingent on the PHE—the HHS needs to provide advanced notice to the public in the Federal Register, spurring a transition period “for proper dispositioning of the product,” according to the FDA.

To Learn More:

—From Bloomberg Law:

Talk of Covid’s End Sparks Fight Over Funding, Emergency Powers

Telehealth Doctors Told to Prepare for End of HIPAA Flexibility

Medicaid Funding Rules for States Get Fresh Look From HHS

Nursing Homes Win Fresh Reprieve From Training Requirement

End of Health Crisis Will Put Heaps of Covid Products in Limbo

New Covid Tests Should Fulfill Unmet Need for Emergency Review

—From Bloomberg News:

US to Extend Covid Public Health Emergency Declaration Again

US Set to Extend Covid-19 Public Health Emergency Past July (2)

(Updates with information about the most recent renewal in first and third paragraphs.)

To contact the reporter on this story: Ian Lopez in Washington at ilopez@bloomberglaw.com

To contact the editors responsible for this story: Brent Bierman at bbierman@bloomberglaw.com; Cheryl Saenz at csaenz@bloombergindustry.com