: On the second anniversary of the pandemic, here’s why it’s so hard to cancel COVID emergency powers
With calls mounting to cancel the federal government’s pandemic-related emergency powers, public health experts warn that a rush to rescind that authority could cause massive disruption for patients and healthcare providers.
In Washington in recent weeks, extensions of emergency powers have been juxtaposed with efforts to cancel them. President Joe Biden in mid-February renewed the COVID emergency under the National Emergencies Act, for example, while the Senate voted last week to rescind the COVID emergency under that law, which has helped coordinate the federal pandemic response. The White House promised a veto if Congress were to pass the measure.
Ending the “state of emergency that led to overreaching mandates” has also become a rallying cry for the People’s Convoy, a group protesting pandemic restrictions in the D.C. region this week.
Meanwhile, the public health emergency first declared by the Department of Health and Human Services in late January 2020, which has helped preserve health care coverage and access during the pandemic, is currently set to expire in mid April. Some lawmakers have pushed for a plan to exit that emergency even as some hospital industry groups called to extend it. HHS has said it would give 60 days’ notice before terminating that emergency, and at least one more 90-day extension is widely expected.
The series of emergencies declared under various federal laws at the start of the pandemic were not merely symbolic. They helped the U.S. government ensure that millions of people on Medicaid would maintain their health coverage, expanded access to telehealth services, gave liability protections to healthcare providers administering COVID-19 treatments, and helped funnel federal assistance to states, among other measures. Each emergency declaration has its own legal repercussions, and calling a hasty halt to some or all of them could “result in considerable chaos,” says James Hodge, law professor at Arizona State University and western region director for the Network for Public Health Law.
Every U.S. state also declared some form of emergency in response to the pandemic, but only about half of states have declarations still in effect. If the federal government cancels its emergency powers, “other states would drop like flies,” Hodge says, rescinding declarations that have helped them implement contact tracing, social distancing measures and other virus-fighting programs.
Maintaining health coverage for Medicaid beneficiaries is a key concern when the HHS public health emergency ends, experts say. A law passed early in the pandemic authorized a temporary 6.2 percentage point increase in federal Medicaid matching funds, so long as states don’t involuntarily disenroll people from Medicaid. That extra funding evaporates shortly after the public health emergency ends, and states will restart the eligibility actions that they’ve paused during the pandemic. “We are really anticipating dramatic coverage losses,” in part because many people have moved during the pandemic and may not receive state requests for information that are sent to outdated addresses, says Kinda Serafi, partner at professional services firm Manatt, Phelps & Phillips.
The Centers for Medicare and Medicaid Services has taken steps to minimize coverage disruptions, including announcing earlier this month that states have about 14 months after the end of the public health emergency to complete pending eligibility reviews.
Absent Congressional action, some pandemic-era expansions of telehealth services for Medicare beneficiaries will also disappear when the HHS public health emergency ends. Those include coverage of telehealth for patients outside of rural areas and for those receiving services at home. Coverage of telehealth for mental health services, however, has already been extended, and there’s bipartisan support for legislation that would further expand telehealth beyond the pandemic, says Jacqueline Marks, senior manager at Manatt.
Other provisions are linked with the HHS public health emergency but are set to expire roughly a year after the end of that emergency, including required coverage of COVID vaccines, testing and treatment for certain groups.
While some Republican members of Congress wrote to the Biden administration in February that “a plan and concrete timelines to exit the PHE are long overdue,” some public health experts see no urgency to declare the COVID public health emergency over. “We should remember we’re still under a public health emergency determination for the opioid crisis,” which has been in place since 2017, says Andy Baker-White, senior director of state health policy for the Association of State and Territorial Health Officials. While no one wants the emergency to go on forever, he says, it’s a valuable tool for pandemic response, and “we want to be able to maintain it as a tool for as long as we need it.”
Experts say another emergency provision will likely stick around for years to come: Early in the pandemic, HHS invoked the Public Readiness and Emergency Preparedness Act, which has generally granted providers immunity from legal liability for administration of COVID treatments and vaccines. That immunity could end as late as October 2025, according to a recent Congressional Research Service report. Even if HHS ends the public health emergency, “don’t expect the PREP Act declaration to go anywhere,” Hodge says.
Other pandemic-related emergency declarations have been made under the Stafford Act, which helps funnel federal assistance to states—but that assistance will be trimmed back in the coming months. Early this month, the administration cited the Stafford Act in extending 100% federal funding to help states with activities such as safely operating schools and other facilities and continuing vaccination and testing efforts. The Federal Emergency Management Agency will also continue providing 100% funding for National Guard pandemic-response efforts. After July 1, the federal funding will drop to 90%, according to a FEMA spokesperson.