COVID-19 Update: CMS waivers continue as public health emergency extended, debate grows on which waivers should become permanent

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Effective July 25, 2020, the Department of Health and Human Services (HHS) renewed the COVID-19 public health emergency declaration. The declaration was initially issued on January 31, 2020, and renewed on April 26, 2020. But the declaration would have expired on July 25, 2020, had it not been renewed again.  With the most recent renewal, the public health emergency is extended for 90 days and will now expire on October 23, 2020, (unless renewed yet again) or earlier, if terminated by the secretary of HHS.

The renewal effectively extends the Centers for Medicare and Medicaid Services’ blanket waivers, as well as the state Medicaid waivers that are in effect during the public health emergency. In addition, other flexibilities were tied to the duration of the public health emergency. For example, all three notifications of HIPAA enforcement discretion are in effect “during the COVID-19 nationwide public health emergency.”

What will happen after the termination of the public health emergency has been a subject of interest to the health care community, and there have been indications that some waivers, such as those expanding telehealth services, will be made permanent. However, debate is growing regarding whether other waivers should continue. Recently, the American Medical Association and numerous other physician groups sent a letter to CMS urging that waivers of scope of practice and licensure be allowed to expire at the conclusion of the public health emergency. 

Hospitals and health care providers should continue to monitor the status of the waivers closely. Until waivers are made permanent, hospitals and health care providers need to plan for the eventual return of operations without waiver flexibility.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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