On Monday, January 30, President Biden announced that the COVID-19 national emergency and public health emergency will end on May 11, 2023. This episode of Jackson Walker Fast Takes features Jackson Walker partner Jeffrey Frost, a former Deputy General Counsel at an integrated health network in Northern California, as he shares three actions health systems should take now to ensure compliance once the emergency declaration expires.
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Courtney White: Hi, everyone. I am Courtney White, and this is Jackson Walker Fast Takes. The COVID-19 pandemic changed all of our lives. Every employer had to change what is considered standard procedure to meet the ever-changing needs of the health pandemic. Health systems definitely had to change protocol. Today, I am going to talk with Jeffrey Frost, a partner in our Austin office, about how health systems are going to be affected when the federal COVID-19 public health emergency declaration expires.
Welcome, Jeffrey. We’re happy to have you here today.
Jeffrey Frost: Good morning, Courtney.
Courtney White: My first question for you is this: How long have the federal declarations been in place, and do we know when the declarations will expire?
Jeffrey Frost: The orders have been in place since January 31, 2020. On January 11, 2023, Secretary of Health and Human Services Xavier Becerra renewed the public health emergencies for another 90 days, which brings it to April 11. He also said he would give the providers a 60-day heads-up before the expiration. So, if we assume that the heads-up will come after the expiration, then that would at least take us to June 11. No one’s sure exactly when they’re going to expire, but most people think they will expire at some point in 2023.
Courtney White: Thank you for that clarity. What states still have declarations in place?
Jeffrey Frost: In addition to the federal public health declaration, many states – almost all states – had declarations in place, but California, Colorado, Georgia, New Mexico, Illinois, and Texas still have declarations that have not expired. All the other states’ declarations have already expired.
Courtney White: What impact is the public health emergency expiration have on health systems?
Jeffrey Frost: As part of the declaration, the government, whether it’s CMS or other agencies in the government, have blanket waivers. These waivers allow the health systems to not have to meet many federal regulations and statutes that they’re typically required to meet as conditions of participating in government health programs or just as a matter of law. Some of those waivers affect areas such as telehealth, TALA, verbal orders, medical records, utilization review, physician and nursing services, and, probably most important, the Stark and anti-kickback laws.
Courtney White: So, can you give us a practical example of how all of these changes will impact health systems?
Jeffrey Frost: Sure. So, these waivers that have been in place have allowed health systems change their practices. At the same time they’ve changed their practices, we’ve had record turnover. Many hospital executives and administrators, managers, directors have left the health system or the hospitals that they work at. So, the people that were responsible for implementing the changes based on the waivers are no longer working there.
So, when the public health emergency expires, these waivers go away. The hospital needs to know what practices are based on the waivers and what are not. I’ll give you an example: Many hospitals provide education to their medical staffs and the medical staffs were allowed to get free continuing medical education, or CME. Stark and anti-kickback laws had specific exceptions or safe harbors that you had to meet to provide this free CME. Well, under the blanket waivers, hospital systems were able to do virtual training and provide the CME. However, when the waivers go away, then it’s questionable whether you can do the training virtually or it has to be on the hospital grounds. So, if the person that implemented the change and said, oh, we’re going to do virtual training based on the waivers is no longer at the health system – and it’s been three years we’ve had these practices in place – the new people that are working with the processes based on the waivers may not know it’s based on a waiver and may think this is just how things have worked forever.
It’s going to be very important to be able to distinguish which practices of each hospital are really based on a waiver and, at that time of the expiration, how do we meet the regulations when it’s required.
Courtney White: How should health systems prepare for these declarations to expire?
Jeffrey Frost: The first thing they need to do is understand what practices have changed based on the waivers, what waivers are being utilized, and make a global list of them. I would recommend someone in either compliance or legal be appointed in charge of this task, interviewing the department heads of each department of the hospital or the health system, and understand what waivers may be in place.
Once you have that list and you understand how things are working now, you need to look at what needs to be put in place to meet the regulations or conditions of participation after the expiration of a declaration of emergency and the waivers go away, and how long is that change going to take. So, I would work to get a list. Once I have that list in place, I’d have a crosswalk to what the practice looks like today, and what it needs to look like to meet the regulations, or the conditions of participation or the law.
And what’s the timeframe? How long is it going to take for me to go from my current practice to the future practice. If that’s going to take three months or longer, then I need to start planning now on how I’m going to make those changes and maybe even start making some of the changes in the front-end or seeking legal guidance on are there other ways that we can meet these regulations or exceptions to the Stark and anti-kickback laws that allow our current practices to move forward?
Courtney White: It sounds like health systems need to start preparing now for those changes. I want to thank you so much for talking with me today, Jeffrey.
Jeffrey Frost: Thank you for having me.
The music is by Eve Searls.
The opinions expressed do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.
Jeffrey H. Frost draws on more than 20 years of experience as in-house counsel to advise clients on healthcare regulatory matters, hospital operations, and medical staff issues. As the former Deputy General Counsel at an integrated health network in Northern California, Jeff’s experience includes advising medical staffs, medical groups, and hospitals on a full range of credentialing, privileging, peer review, and quality assurance topics, as well as assisting hospital administration with governmental investigations, fraud and abuse claims, agency complaints, and medical staff hearings.