On January 27, 2020, the Secretary of the Department of Health and Human Services, Alex Azar, announced a public health emergency (PHE) due to the COVID-19 pandemic. The PHE has been renewed four times by Alex Azar, and a further 3 times by his replacement, Xavier Becerra. On January 14, 2022, Becerra announced a further 90-day extension to the PHE.
That means the various financial aid programs and public health protections are guaranteed to continue for at least another 3 months. The notices of enforcement discretion announced by the HHS’ Office for Civil Rights will also remain in place which will ensure healthcare providers are protected against financial penalties for certain violations of the HIPAA Privacy Rule related to the good faith provision of telehealth services, the use of online/web-based scheduling applications for COVID-19 vaccination appointments, community-based testing sites, and uses and disclosures of PHI by business associates for public health and health oversight activities.
It is unclear at this stage how many more times the PHE will be extended – if at all – after the next 3 months, but HHS spokesperson Kirsten Allen confirmed that prior to the PHE expiring or terminating, states will be provided with 60 days’ notice to give them time to implement any necessary changes. According to NBC News, around 15 million people, including 6 million children, will lose Medicaid coverage when the PHE ends.
The end of the PHE will also see the pandemic-related expansion of access to telehealth services come to an end as well as the notice of enforcement discretion regarding the use of telehealth technologies that would normally not be permitted under HIPAA. Ahead of the expiration or termination of the PHE, healthcare providers will need to ensure that if they continue to provide telehealth services, they use technology that is compliant with the HIPAA Rules and enter into business associate agreements with the providers of the software and communication solutions. Telehealth Access for America has been urging Congress to make the temporary changes to telehealth access permanent and ensure Americans can continue to benefit from virtual care.
The American Hospital Association is not keen to see the PHE end any time soon. Earlier this month the AHA urged Secretary Becerra and President Biden to extend the PHI, with the latter asked to extend the national emergency for another year to ensure the flexibilities provided by Section 1135 waivers remain in place, including those related to telehealth.
The AHA said healthcare providers are still having to cope with high numbers of COVID-19-related hospitalizations, have significant staff shortages due to COVID-19 infections and burnout, and are experiencing supply chain challenges that have caused shortages of medications and medical devices, and need the Section 1135 flexibilities to continue.