[co-author: Wei Wei]*

The Biden Administration has announced that the federal Public Health Emergency (PHE) for COVID-19 will expire at the end of the day on May 11, 2023. During the COVID-19 PHE, the Centers for Medicare & Medicaid Services (CMS) has used a combination of emergency authority waivers, regulations, enforcement discretion, and sub-regulatory guidance to grant flexibilities to healthcare providers and thereby help providers expand facility capacity and best use existing resources (primarily, staff and time) to respond to the high demand for healthcare caused by the COVID-19 pandemic. Many healthcare providers have taken advantage of some or many of these waivers. However, the approaching expiration of the PHE also means the expiration of many of these flexibilities. Thus, as healthcare providers prepare for the road ahead post-PHE, they should consider what changes to facility usage and practices and policies will be required to assure compliance with, for example, Medicare conditions of participation and payment and state licensure requirements that were waived during the PHE.

For example, when the PHE expires, hospitals will no longer be allowed to provide care in temporary expansion sites or spaces within the hospital that do not conform to Medicare conditions of participation requirements. The Emergency Medical Treatment and Labor Act (EMTALA) waiver allowing hospitals to screen patients at a location offsite will also come to an end. Likewise, the expiration of the PHE will mean the end of the blanket waivers of certain portions of the physician self-referral law (the Stark Law). These waivers relaxed restrictions on certain financial relationships.

While healthcare providers should expect and prepare for a vast array of changes, some flexibilities will remain in place even after the end of the PHE. For instance, the majority of current Medicare telehealth flexibilities will remain in place through December 31, 2024, due to the Consolidated Appropriations Act of 2023 passed by Congress in December 2022. As another example, the modified Medicare physician supervision requirements that allow the supervising physician or practitioner to be "immediately available" through "virtual presence" will be in place through the end of 2023.

*2L Diversity Healthcare Law Clerk

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