Public Health Emergency Set for Extension: Lack of Notice Implies Renewal through Mid-October

The declared Public Health Emergency (PHE) under the Public Health Service Act will apparently be renewed at least one further time beyond its current July 15, 2022 expiration, as the Department of Health and Human Services (HHS) has repeatedly committed to provide a 60-day notice prior to the termination or expiration of the PHE, and mid-May has passed without any such notice. Assuming that HHS issues the maximum 90-day renewal in line with the length of past renewals, such a renewal would extend the PHE through October 13, 2022.

Baker Donelson has launched a series of articles examining transition matters as the emergency declarations are anticipated to expire, including that providers will need to brace for expanded uninsured populations as Medicaid rolls are trimmed by state Medicaid agencies upon the reinstatement of eligibility redeterminations. Notably, each extension raises the magnitude of the looming Medicaid enrollment drop-off due to natural shifts in income and the like that occur over time.

Certain telehealth waivers implemented in connection with the PHE have already been legislatively extended for 151 days following the end of the PHE, with permanent changes possible given a flurry of recent telehealth legislative activity. The apparent additional extension of the PHE would thus lengthen the waiver of certain telehealth coverage requirements, providing a temporary reprieve to the large constituencies of providers and patients who have been advocating for such temporary waivers to become permanent.

Additionally, Public Assistance funding through the Federal Emergency Management Agency (FEMA) has not yet shut down, but FEMA has issued a year-end deadline for public entities and eligible non-profits to submit funding requests for eligible pandemic response costs incurred through July 1, 2022.

On the other hand, other governmental flexibilities spurred by the pandemic are already winding down, as the Department of Homeland Security has ended the temporary policy allowing employers to accept expired List B documents for I-9 purposes.

We will continue to monitor developments related to the end of the PHE and other pandemic-related governmental programs and waivers.