Senior living providers navigate PHE unwinding, state-level guidelines

The May 11 expiration of the federal public health emergency declaration will bring changes to federal healthcare programs, with various regulatory flexibilities expiring immediately or within a short period of time. Many policy interventions to combat COVID-19 will continue, however, leaving senior living providers to navigate the unwinding of pandemic-era rules and sometimes conflicting state-level guidelines.

Argentum turned to its outside counsel, Foley Hoag LLP, to prepare a summary of considerations around the ending of the PHE, including implications for federal and state liability protections and temporary increases in home- and community-based services funding.

The Biden administration ended the COVID-19 national emergency on April 10, followed by the ending of the PHE on May 11. Last year’s omnibus spending package provided a two-year extension of telehealth flexibility through December 2024 and moved up the termination date of additional Medicaid funding to April. 

The administration also ended the national healthcare worker COVID-19 vaccination mandate earlier this month for those working in Medicare- and Medicaid-certified facilities, but that mandate did not apply to assisted living providers — including HCBS providers — after CMS noted in its guidance that it did not have regulatory authority over those settings. 

The ending of the PHE may have bigger effects for nursing homes and home health providers, but American Health Care Association / National Center for Assisted Living said that it will maintain its commitment to educating and encouraging long-term care residents and staff on the importance of staying up to date on COVID-19 vaccinations.

“The public health emergency may be ending, but the recovery from the pandemic continues,” AHCA/NCAL noted in a news release, adding that long-term care continues to struggle to rebuild its workforce. “Our main priority is to encourage Congress and the administration to make meaningful investments that will help us attract and retain a pipeline of caregivers and protect access to care for our nation’s seniors.”

LeadingAge similarly said that it would continue to support vaccine education and uptake, although a “continuation of the vaccine mandate is no longer needed” as the country is in a different stage of the pandemic than it was in 2021.

The Argentum memo noted that stakeholders will continue advocating to make certain flexibilities permanent — including broader Medicare coverage of telehealth.

“Argentum is working with its state partner affiliates on addressing state level guidelines that may conflict with the now terminated PHE, as well as other restrictions, requirements and unfunded mandates imposed during the pandemic,” the association wrote in a blog. “As the PHE ends, Argentum will continue to support its members with navigating and unwinding pandemic-era rules and guidelines to ensure that senior living communities continue to feel like ‘home’ for the nearly 2 million Americans residing in them throughout the nation.”

Some liability protections continue

What is not affected by the ending of the PHE is the PREP Act declaration providing certain liability protections and the Section 564 declaration regarding emergency use authorizations for countermeasures. Both were implemented in 2020.

Some provisions of the PREP Act — including protections for those prescribing, administering or dispensing countermeasures — extend through Oct. 1, 2024, or when the Department of Health and Human Services ends them. 

Assisted living providers that used countermeasures — including COVID-19 tests — made available through emergency use authorizations could receive liability protection under the PREP Act that preempts state law liability claims. But several cases winding their way through the courts are challenging those protections.

“For the time being, the scope of PREP Act preemption will likely continue to be litigated in the lower courts, without further guidance from the Supreme Court,” according to the Argentum memo.

According to the National Conference of State Legislatures, 22 states passed liability legislation related to COVID-19 in 2020 alone. Most protections tied liability protections to the duration of the state of emergency by the state, rather than the federal government, creating varying provisions and timelines on when protections end.

Medicaid HCBS waivers depend on individual states

CMS granted states a range of emergency waivers to modify their Medicaid programs, particularly their HCBS programs

All 50 states used Section 1915(c) waivers to change the operation of their HCBS programs, with several states expanding services, including meal delivery, case management via telemedicine, and accelerated intake for HCBS services for applicants in COVID-19 “hot spots.”

Although some waiver provisions ended before the ending of the PHE, CMS announced that end dates for approved waivers will be no later than six months following the conclusion of the PHE. For community-based organizations, flexibilities related to how and where Medicaid enrollees receive care depend on state decisions on whether to continue them.

The federal government last fall issued a compliance warning to HCBS providers to make progress on meeting the requirements of the HCBS settings final rule, which went into effect in March.