The end of the COVID-19 Public Health Emergency (PHE) on May 11, 2023, presents both regulatory and business risks for Medicare Advantage (MA) plans as some (but not all) emergency declarations and regulatory flexibilities also come to an end. This article summarizes the major MA requirements and flexibilities related to the COVID-19 pandemic and addresses whether they will end along with the PHE. MA plans should monitor the changes to requirements and flexibilities, evaluate the potential impact on beneficiaries, and consider whether operational adjustments or targeted beneficiary communications are appropriate to help mitigate any potential impacts.
IN DEPTH
The era of the COVID-19 pandemic is approaching its official end. The Biden Administration plans to end the national emergency for COVID-19, declared under Section 201 of the National Emergencies Act, and the public health emergency (PHE) for COVID-19, declared under Section 319 of the Public Health Service Act, on May 11, 2023.
These emergency declarations have been in place since March 2020. They enabled the US Department of Health and Human Services (HHS) and its operating divisions to waive or modify certain requirements for Medicare, Medicaid and the Children’s Health Insurance Program (CHIP). In some instances, HHS linked its exercise of enforcement or programmatic discretion to the declarations. Congress later enacted legislation that imposed new requirements or provided HHS with additional flexibilities tied to the declarations (See generally Families First Coronavirus Response Act; Coronavirus Aid, Relief, and Economic Security Act (CARES); American Rescue Plan Act of 2021; Inflation Reduction Act of 2022; Consolidated Appropriations Act, 2023 (CAA)).
HHS and the Centers for Medicare & Medicaid Services (CMS) implemented new requirements and waived or modified others for the Medicare Advantage (MA) program. For example, MA plans received increased flexibility to waive cost-sharing for COVID-19 treatments and prior authorization for certain services. Most of those changes promise to end with the PHE.
The end of the PHE presents both regulatory and business risks for MA plans. MA plans that overlook the end of the PHE may suddenly find themselves out of compliance with program requirements. At the same time, a return to pre-pandemic requirements may increase plan costs and produce unintended economic and clinical consequences for enrollees.
This article summarizes the major MA requirements and flexibilities related to the COVID-19 pandemic and addresses whether they will end along with the PHE. MA plans should monitor the changes to requirements and flexibilities, evaluate the potential impact on beneficiaries, and consider whether operational adjustments or targeted beneficiary communications are appropriate to help mitigate any potential impacts.
The COVID-19 Determinations and Declarations
In January 2020, Secretary of Health and Human Services Alex M. Azar II determined that the PHE existed. In March 2020, President Trump declared a national emergency under the National Emergencies Act and made an emergency determination under the Stafford Act.
Section 319 of the Public Health Service Act authorizes the Secretary of Health and Human Services to determine that a PHE exists if the Secretary determines that (1) a disease or disorder presents a PHE, or (2) a PHE, including significant outbreaks of infectious diseases or bioterrorist attacks, otherwise exists. The determination lapses in 90 days unless the Secretary renews it.
The determination enables the Secretary to exercise additional legal and regulatory authorities to respond to the PHE. The authorities include Section 1135 of the Social Security Act, which empowers the Secretary to waive statutory and regulatory requirements for Medicare, Medicaid and CHIP. For the COVID-19 pandemic, the Secretary delegated the authority to prescribe the scope of the waiver to the CMS administrator.
The Secretary has renewed the PHE for COVID-19 many times since March 2020. The most recent renewal was in February 2023. The PHE is set to lapse on May 11, 2023.
Key COVID-19 Requirements and Flexibilities for MA Plans
HHS issued its roadmap for the transition from the PHE on February 9, 2023. The roadmap addresses many specific actions and initiatives, such as expanding access to telehealth services, providing support for mental health and substance use disorder treatment, and improving data collection and analysis to better track COVID-19 and other public health threats.
CMS issued a corresponding fact sheet on February 27, 2023. The fact sheet addresses the agency’s approach to COVID-19 flexibilities going forward. On April 27, 2023, CMS issued a list of frequently asked questions regarding the CMS waivers, flexibilities and the end of the PHE addressing all programs, including Medicare, Medicaid, CHIP and private insurance.
The following table summarizes the anticipated dispositions of key flexibilities for MA plans:
MA plans should continuously monitor updated guidance from CMS to stay informed about how these changes will impact them and other industry stakeholders.
MA plans should take several additional steps during the transition from the PHE, including the following:
- Assess the impact: Review the waivers and flexibilities allowed during the PHE and assess the impact of their expiration on plan benefits, costs and health outcomes.
- Adjust operations: Consider whether any operational, staffing or system changes are necessary for a smooth transition. Implement changes as appropriate.
- Communicate with members: Promptly inform members about any changes in benefits, costs or operations that may impact them. Note how the changes may affect the options available to members in the future.
- Communicate with providers: Promptly inform providers about any changes that may impact their ability to continue providing care to members.
By taking these steps, MA plans can help ensure a smooth transition for all stakeholders.
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