Today marks the end of the COVID-19 public health emergency (PHE), which was first activated in January 2020 and had been extended every 90 days by the U.S. Department of Health and Human Services (HHS). The PHE provided the foundation for numerous programs and policies established in response to the pandemic, including requiring free rapid tests for private insurance and Medicare, telehealth services, and authorization of the PREP Act.
To help senior living stakeholders best understand the impact of the ending of the PHE, Argentum through its outside counsel Foley Hoag LLP, prepared a detailed summary of considerations, including implications for federal and state liability protections, temporary increases in Home and Community Based Services (HCBS) funding, and other issues. This memo has been updated from the previous version released in February, and is current as of today, May 11, 2023.
The Biden Administration announced in February that it would no longer renew the PHE and that it had planned to end both the PHE and the COVID-19 national emergency concurrently on May 11. Following the passage of legislation, the administration slightly changed course and terminated the national emergency declaration on April 10 by signing into law H.J. Res 7, while retaining the PHE until its termination today.
Several elements of the PHE were also addressed in last year's omnibus spending package, including providing a two-year extension of telehealth flexibility through December 2024, and moving up the termination date of additional Medicaid funding from July 2023 to April 2023.
Along with the end of the PHE, the administration ended the national health care worker vaccination mandate, which was originally established in November 2021 and covered health care workers at Medicare and Medicaid-certified facilities. However, the mandate did not apply to assisted living facilities, including providers of Home and Community-based Services. CMS specifically noted in guidance that it “does not have regulatory authority over care settings such as Assisted Living Facilities.”
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. Recently, through advocacy efforts led by our State Partners, New Jersey issued Executive Order No. 325 lifting COVID-19 testing requirements for assisted living facilities and congregate settings, and California released updated guidance to treat assisted living communities like other non-health care residential settings and ending mandatory staff masking in most circumstances.
Argentum’s top priority throughout the PHE has been supporting communities, residents, and frontline caregivers with the resources needed to combat COVID-19. 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 two million Americans residing in them throughout the nation.
