On July 23, 2020,, Department of Health and Human Services (HHS) Secretary Alex Azar signed a renewal of his determination that the novel coronavirus (COVID-19) pandemic constitutes a nationwide public health emergency (PHE).
Secretary Azar firstĀ declared COVID-19 a nationwide PHE on January 31, 2020, utilizing his authority under Sec. 319 of the Public Health Service Act (PHS law;Ā PHE FAQs). He issued a previous renewal of the determination effective on April 26, which was scheduled to expire on July 25. Under Sec. 319, the Secretary may extend the PHE declaration for subsequent 90-day periods for as long as the PHE continues to exist. Therefore, this newest declaration will be effective from July 25 through October 23, 2020, unless the Sec. Azar determines that the PHE has ceased to exist prior to that date.
Notably, the extension of the PHE designation means that several key temporary policy changes designed to provide relief to health care providers and states will now remain in place through at least October, as they are statutorily or regulatorily tied to the existence of the COVID-19 PHE. For example, pursuant to the Families First Coronavirus Response Act (WHG summary), the existing 6.2 percent enhancement for all states of the Medicaid Federal Medical Assistance Percentage (FMAP) rate will continue for the duration of the PHE. Similarly, CMS provided in its recent emergency rulemaking (here and here) that landmark flexibilities provided for the reimbursement of telehealth services will not expire before the end of the PHE designation (see WHG chart here).
Lastly, we would note that the continued declaration of a PHE by the Secretary, in concert with the Presidentā€™s ongoing National Emergency declaration, provides the Department further latitude to approve additional flexibilities on a state-by-state basis via Section 1135 emergency waivers. Unless terminated early, the presidential National Health Emergency will not necessitate a notice of extension until its one-year anniversary (i.e., March 2021). For further discussion of the interaction between the two authorities, see our previous blog post here.
