Healthcare Legal Landscape Post-COVID: Everything You Need to Know
Breaking down the effects of the end of the public health emergency and the omnibus bill on Medicaid and other healthcare programs
The national public health emergency (PHE) declared at the outset of the pandemic allowed states to claim more federal dollars for their Medicaid expenses so long as they agreed to put on hold eligibility redeterminations. As a result, Medicaid rolls grew from 65 million enrollees in October 2019 to more than 84 million in October 2022, and after 11 renewals of the PHE and no end in sight, federal legislators took it upon themselves to restore states’ ability to remove ineligible people from their Medicaid programs. The Consolidated Appropriations Act of 2023 (omnibus spending package, or CAA) allows states to resume eligibility redeterminations, meaning that the ban on redeterminations is no longer tied to the PHE. Additionally, the CAA extended pandemic-era flexibilities related to telehealth through the end of 2024 and accelerated the timeline for resuming the enforcement of pre-pandemic Medicaid-related rules included in the PHE.
This timeline is largely based on the Kaiser Family Foundation’s excellent breakdown, assessing potential impacts on patients, providers and payers. The dates marked with an asterisk are subject to change.
April 1, 2023
Per the CAA, states may resume processing Medicaid redeterminations regardless of the PHE without losing their right to the enhanced Federal Medical Assistance Percentage (FMAP). They have one year to complete the redeterminations. The continuous enrollment provision was previously set to expire on the last day of the first calendar quarter beginning one year after the end of the PHE.
Lawmakers and commentators are worried about the fate of those who will lose Medicaid coverage, but our colleagues have pointed out that only a fraction of people in that situation will become uninsured, and that refocusing the program on those who need it most will enhance quality and access to care.
*May 11, 2023 (or whenever the PHE ends)
Beneficiaries will face cost-sharing requirements for COVID treatment and pay full price for at-home tests.
They will again have to be hospitalized for three days before being able to stay at a skilled nursing facility (SNF).
Part D plans will no longer have to dispense a 90-day supply of covered drugs to beneficiaries who want one.
Privately insured people will be subject to their plan’s terms and may face out-of-pocket costs for COVID testing and treatment. Group insurance plans will no longer be forced to cover eight over-the-counter at-home tests per month at no cost to plan members.
People without insurance who received Medicaid coverage (with 100% FMAP) for COVID vaccines, tests and treatments under the PHE may start facing high out-of-pocket costs for vaccines once it ends, as manufacturers have announced steep price hikes — selling vaccines for $130 per dose while the government paid between $25 and $30. This is a bitter pill to swallow for taxpayers who provided billions of dollars and other guarantees to vaccine manufacturers via Operation Warp Speed.
Healthcare providers will again be subject to penalties for HIPAA violations if they serve patients through non-authorized platforms like FaceTime and Skype. Drug Enforcement Administration-registered providers will no longer be allowed to issue prescriptions for controlled substances unless patients first come for an in-office evaluation. Opioid use disorder specialists are sounding the alarm over the end of this flexibility, as they say that it will hinder patients on the road to long-term recovery by making prescriptions for opioid use disorder medications more difficult to access.
Hospitals will no longer receive a 20% higher Medicare reimbursement when caring for patients who have a COVID diagnosis, a measure that may have acted as a perverse incentive.
*July 10, 2023 (i.e., 60 days after the end of the national emergency declaration issued by President Trump in March 2020)
The national emergency declaration, which President Trump issued with an effective date of March 1, 2020, is separate from the PHE as it is pursuant to Section 201 of the National Emergencies Act. The Biden Administration plans to end that emergency on May 11, 2023, i.e., the same day as the PHE. The 1,226 days running from the beginning of the Section 201 emergency to 60 days after its end is the so-called “Outbreak Period” during which several rules applying to group health plans were on hold. Beginning July 10, group health plans subject to ERISA must no longer exclude the Outbreak Period when making various determinations for COBRA (election period, when the first premium payment must be made, deadline for employers to notice employees of COBRA rights), calculating the special enrollment period for group health plans, calculating the timeframe for filing claims and setting deadlines for appeals.
January 1, 2024
Changes to Medicaid made through the CAA
The enhanced FMAP is fully sunset. It was previously set to expire on the last day of the first calendar quarter beginning one year after the end of the PHE. States will have to foot a larger share of their Medicaid enrollees’ medical bills as a result (FMAP through September 2023 are listed here).
States may resume implementing more restrictive eligibility standards than those in effect on January 1, 2020.
States may increase premiums to levels higher than they were on January 1, 2020.
States may increase political subdivisions’ contributions to the non-federal share of costs beyond what was required on March 1, 2020.
States will have to ensure 12 months of continuous coverage for children who are determined eligible for Medicaid.
*September 30, 2024 (last day of the first calendar quarter beginning one year after the end of the PHE)
Medicaid beneficiaries will face cost-sharing requirements for COVID tests and treatments.
October 1, 2024
In March 2020 HHS Secretary Alex Azar issued a Public Readiness and Emergency Preparedness (PREP) Act emergency determination that provided liability immunity to vaccine and treatment manufacturers and to the US government for drugs and treatments developed against COVID. The declaration was amended 10 times to provide additional liability protections for pharmacists and pharmacy interns to administer COVID shots, providers to vaccinate patients in states in which they are not licensed, and providers with an expired license to administer COVID shots in any state. This emergency determination is why patients harmed by those treatments cannot sue over harms resulting from COVID vaccines and treatments. Most of the declaration’s protections will end on October 1, 2024.
January 1, 2025
Telehealth-related changes to Medicare made through the CAA (please note that Congress may take action to permanently protect those flexibilities before this deadline):
Beneficiaries not located in rural areas will no longer be able to receive non-behavioral telehealth services.
Beneficiaries will need to do an in-person visit within six months of an initial behavioral telehealth service and once a year thereafter.
Beneficiaries will need to travel to a healthcare facility to have their telehealth visits reimbursed.
Beneficiaries will no longer be able to get telehealth visits reimbursed if they were delivered via a smartphone.
A number of telehealth services will no longer be reimbursed.
Federally qualified health centers (FQHCs) and rural health clinics will no longer be able to provide telehealth services to beneficiaries.
What Won’t Change
Medicaid beneficiaries’ ACIP-recommended vaccines (and the administration of vaccines) are covered per the Inflation Reduction Act of 2022, so their coverage is no longer tied to the PHE.
Per the CAA, which made permanent changes to behavioral health reimbursement, Medicare beneficiaries will be able to use FQHCs and rural health clinics to receive behavioral telehealth services and receive those services from home, and they will be able to use an audio-only device to receive such services.
Vaccines recommended by the Centers for Disease Control and Prevention (CDC)’s Advisory Committee on Immunization Practices (ACIP) will continue to be fully covered for privately insured people with no out-of-pocket costs given that insurance companies may not charge a copay on ACIP-recommended vaccines. However, given the manufacturers’ price hikes mentioned above, privately insured people will bear the cost of vaccines in the form of higher premiums. They may also have to pay for the cost of having the vaccine administered to them.
What Is Still TBD
The FDA continues to facilitate access to medical remedies against COVID via Emergency Use Authorization (EUA). HHS Secretary Alex Azar issued a separate emergency declaration in February 2020 justifying EUA of medical remedies against COVID-19. This emergency declaration is not tied to the PHE and will only end when the HHS secretary terminates it.
Under the PHE, Medicare Advantage (MA) plans must cover out-of-network services if provided at facilities that accept Medicare patients, and they can’t charge MA plan participants more than they would have for an in-network service. This provision is tied to all emergency declarations, including the above-mentioned declaration authorizing EUAs. It will remain in place until they have ended or there are no more disruptions to access to care.
Many states chose to allow Medicaid to cover telehealth services during the pandemic. Post-pandemic, those states are in charge of deciding the fate of these flexibilities, with some having already moved to extend them or make them permanent.
Private coverage of telehealth visits will be up to insurance plans and subject to state laws. Many states have payment parity laws, meaning that insurance companies must reimburse providers at the same rate for remote and in-person visits.
All states allowed providers to practice telehealth in states where they were not licensed. They are now in charge of deciding the fate of those flexibilities, with some having already moved to extend them or make them permanent.