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COVID-19 Public Health Emergency – Compliance Considerations as We Prepare for the End of the PHE

On January 30, 2023, the Biden Administration announced plans to end the Public Health Emergency (PHE) on May 11, 2023

The PHE was enacted on January 27, 2020, to provide flexibility to healthcare providers and payors as they focused on managing the COVID-19 pandemic. Numerous waivers were put into place because of the PHE providing flexibilities related to telehealth coverage, Medicare and Medicaid coverage, durable medical equipment, Stark Law provisions, and relaxed Health Insurance Portability and Accountability Act (HIPAA) requirements, just to name a few. Many of the waivers are set to expire when the PHE ends while some have been given a longer runway. Telehealth waivers, for example, are set to expire after a 151-day extension following the end of the PHE. It should be noted, the expiration of the separate emergency use authorization allowing the use of certain medications for treating COVID-19 has not been announced. Currently, it is not expected to expire with the PHE in May.

As we have seen throughout the course of the pandemic, a lot can change in a few months. What is certain, however, is that healthcare organizations need to be prepared for the waivers to end. Compliance Officers should begin developing a path forward now for how their organizations will address the upcoming changes. 

So, what should Compliance Officers be doing between now and May 11th to prepare? 

Begin by working with operational leaders to identify which waivers your organization utilized over the course of the pandemic. Review the CMS guidance related to those waivers to identify what they included, when they will be expiring, if they have been made permanent and any applicable guidance. 

Then, begin developing a roadmap for implementing operational changes to roll back those waivers. 

  • Identify what operational changes were made as a result of the waivers.
  • Review current internal controls, policies, and procedures and identify those that were in place prior to the waiver.
    • What should be reinstated, adapted, or if new controls should be developed to better align with the current operational environment?
    • What forms, reports, documentation, etc. will need to be created?
  • Plan for the implementation of these internal controls.
    • What communication, education, and training will be necessary?
    • How will these changes be audited and monitored for compliance?
  • Include the changes in your annual risk assessment and auditing and monitoring work plans. 

Depending on the waivers utilized, the end of the PHE presents a lot of challenges and a great deal of work. We recommend that organizations implement a phased approach to rolling back waivers. Consider, in your planning, which controls you can reintroduce now, prior to the May 11th deadline. 

Start seeking feedback from the revenue cycle regarding internal controls and monitoring activities pertaining to waiver-centric billing. Proactive monitoring and auditing of telehealth services, site of services, laboratory services and other billing practices impacted by the enactment of the PHE will be thoroughly scrutinized by government payors in the upcoming years, starting with 2023. Hence, it is imperative that these areas are included in compliance risk assessment activities and prioritized within the Compliance Work Plan.  

Ankura will continue to monitor this topic and discuss guidance and updates each month in our free Compliance Round-Up webinar. The Compliance Round-Up occurs on the second Tuesday of each month. You can register for the webinars here


© Copyright 2023. The views expressed herein are those of the author(s) and not necessarily the views of Ankura Consulting Group, LLC., its management, its subsidiaries, its affiliates, or its other professionals. Ankura is not a law firm and cannot provide legal advice.


healthcare compliance, healthcare operations, healthcare & life sciences, article

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