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Administration may end public health emergencies in May 2023

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The Biden Administration plans to put an end to the COVID-19 health emergencies on May 11, 2023, according to a Statement of Administration Policy submitted to the Rules Committee of the House of Representatives today.

The statement was presented in opposition to two items that the committee was considering for submission to the full House: The Pandemic is Over Act (H.R. 382) and a resolution relating to a national emergency declared by the President (H.J. Res. 7).

The administration’s policy statement indicated that the plan is to end both the public health emergency (PHE) declaration that was issued by the Secretary of Health and Human Services in January 2020 and the related national emergency issued by President Trump in March 2020.

Some flexibilities may end in 2024

The PHE declaration has been renewed every three months since January 2020 and has been used to implement flexibilities for telehealth usage and Medicare and Medicaid payment, among other things. Most recently the PHE declaration was renewed on January 11, 2023 with an expected expiration date of April 11, 2023. According to this most recent Statement of Administration Policy, the plan is for it to be renewed one more time, but only for an additional 30 days before being terminated.

Some of these flexibilities have been separated from the PHE declaration by the Consolidated Appropriations Act, 2023. That law, as an example, extended the telehealth flexibilities that removed geographic requirements, expanded originating sites and expanded practitioners eligible for providing telehealth services until December 31, 2024.

However, some of the other emergency powers and changes to health care policy will expire upon the termination of the public health emergency. Among these are a series of blanket waivers and flexibilities issued by the Centers for Medicare & Medicaid Services. In the House Rules Committee hearing on the two bills, some witnesses pointed out these additional flexibilities as needing additional protection and needing to be addressed before the final decision is made to terminate the public health emergency.

Other emergency declarations could follow

The end of the COVID-19 health emergencies also raises the possibility of termination of separate but related emergency declarations. This includes the termination of the PREP Act declaration that allows health care providers to employ countermeasures against COVID-19 without undue fear of liability for any damages those countermeasures may cause.

Another concern with the cancellation of the health emergencies could be the possible cancellation of the emergency declaration that has supported Food and Drug Administration’s Emergency Use Authorizations for COVID-19 testing and vaccines.

The two bills that were proposed in the House Rules Committee, if passed through both houses of Congress and were signed by the President, would end the health emergencies upon enactment. However that result is unlikely given the divided nature of Congress and the stated opposition of the White House to these bills.

Reed Smith will continue to follow developments with regard to the public health emergencies. If you have any questions in how this affects you, please reach out to the health care attorneys at Reed Smith LLP.

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