On August 18, 2022, the Centers for Medicare & Medicaid Services (“CMS”) issued guidance regarding the looming end of the COVID-19 public health emergency (“PHE”) and the associated emergency authority waivers, regulations, enforcement discretion, and sub-regulatory guidance. These flexibilities were issued to ensure that people had access to necessary care, give health care providers the ability to respond to the unprecedented COVID-19 pandemic, and keep patients safe.

Although the PHE is currently set to expire on October 13, 2022, Department of Health and Human Services (“HHS”) Secretary Xavier Becerra has committed to giving states and the health care community 60 days’ notice before ending the PHE. As we are already less than 60 days from October 13, 2022, we can assume that the PHE will be extended. In conjunction with the end of the PHE, many of the aforementioned waivers and flexibilities will also end. Because of this, CMS has advised that healthcare providers should establish previous billing practices and safety standards as soon as they are able.

However, some PHE flexibilities and requirements are already set to extend past the end of the PHE. For example, nursing homes will need to continue reporting COVID-19 cases and deaths until at least 2024. Additionally, in 2021 Congress expanded telehealth access for mental health care past the end of the PHE. Conversely, other flexibilities have already been terminated in advance of the end of the PHE—an example of this is the now-eliminated waiver for nurse aide training and certification in long-term care facilities.

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