Federal Determination of Continued Public Health Emergency

Arent Fox

Arent Fox

On July 19, 2021, the Secretary of Health and Human Services (HHS) renewed the declaration of the COVID-19 Public Health Emergency (PHE), effective July 20, 2021.

With this renewal, unless otherwise specified, any existing 1135 waivers (waivers to various key health care statutory requirements) put into place during the PHE will continue until the PHE declaration expires. 

Under Section 1135 of the Social Security Act, the Secretary of HHS has the authority to issue waivers or modifications of Medicare, Medicaid, Children Health Insurance Program (CHIP), Health Insurance Portability and Accountability Act (HIPAA), and Emergency Medical Treatment and Labor Act (EMTALA) when the President declares a major disaster or emergency or the Secretary of HHS declares a PHE. In response to the PHE, the Secretary of HHS waived or modified many otherwise applicable provider requirements.

It is important to note that while the Federal PHE has been extended, many states have rescinded their state PHE declarations. Therefore state waivers that were in place during the original PHE period may no longer be in effect. Unless federal law supersedes state law for a particular issue or matter, providers must still comply with the state law. If the state exemptions or waivers are no longer in effect, the provider may not retain the leeway that is otherwise available under the Federal PHE. For that reason, providers should be cognizant of applicable state laws when taking action pursuant to a waiver.

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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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