On May 11, the COVID Public Health Emergency (PHE) is set to end and along with it, a whole slew of requirements end or change, and regulatory waivers applicable to the Public Health Emergency, the same (ending). The end of the PHE will have positive and negative impacts on providers of all types though some things that were applicable during the PHE will continue via CMS rulemaking (tele-health provisions for example). One of the most negative impacts of regulatory waivers ending is the return of the three-overnight rule (3 day stay) for patients entering an SNF and potentially, receiving Medicare coverage for their qualifying stay. I wrote a post on this waiver change here: https://wp.me/ptUlY-w5
Among the most notable changes that will occur for providers with the end of the PHE are the requirements around masking, testing, and vaccination mandates for staff. Each of these conditions are effectively, eliminated with the expiration of the PHE. While other countries across the world have eliminated all or most of their pandemic restrictions/requirements over the past year, the U.S. and its health system have been slow to relax requirements with the Biden Administration extending the emergency up until May 11. Similarly, the emergency patchwork has followed through to states, some long ago abandoning masking requirements, vaccination mandates, testing, etc. What has been confounding is the myriad of rule interpretations and requirements that varied from municipalities to counties, to states, and ultimately, to the Federal government. For Medicare/Medicaid providers, Federal requirements superseded all other provisions in any other jurisdiction.
Within the Public Health Emergency period, even providers not participating in Medicare or Medicaid were impacted by the Federal policies. Many states chose to follow the Federal PHE provisions, layering the same over providers within the senior housing industry (aka Assisted Living and some CCRC/Independent Living under state law). Illinois is an example. In contrast, other states chose to ignore the Federal PHE provisions when not applicable to providers such as hospitals, nursing homes, home health, etc. Iowa, Florida, Texas are examples of states that early-on in the pandemic created rules or as in the case of Iowa, passed legislation prohibiting vaccine or mask mandates within state control.
Come May 11, confusion will no doubt remain prominent on COVID infection control/public health requirements. For example, the only updated CDC guidance on masking requirements dates back to September of 2022. In this guidance, the recommendation for masking requirements for visitors, patients, and staff is conditioned on a CDC tracking mechanism for the level of community concentration of COVID infection. Reporting from health departments, hospitals, SNFs, etc., fed this mechanism. Masking recommendations were tied to this level (high recommending masking vs. low, recommending optional masking). COVID testing requirements were also tied to this measure.
Effective with the end of the PHE, CDC has indicated that it would no longer report on the level of community infection/transmission. The PHE has deferred consistently to various agency recommendations for requirements and then subsequently, enforcement as needed. Clearly, we will see extensive confusion unless the CDC issues new guidance clearing up, the masking requirements tied to community COVID prevalence. I’ve watched many providers already move to a “no mask required” status, regardless of updated guidance. I’ve also watched many providers stuck and confused by virtue of state requirements vs. CDC requirements vs. where the community COVID prevalence really was in their area. The CDC guidance for long-term care (fundamentally the same for hospitals) is here: https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-recommendations.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fhcp%2Fnursing-home-long-term-care.html
I’ve seen some news coverage/reporting on the end of the Public Health Emergency, but it is very spotty. I also know by virtue of travel, etc., the awareness of COVID among providers and the community is varied. As I routinely traverse Illinois, Wisconsin, and Iowa, I see wide differences in COVID precautions, alerts, monitoring, requirements being applied, etc. Some of this due to region and state policy and some of it is due to provider behavior. Iowa as I mentioned, long ago took a stance against most PHE COVID related mandates and recommendations whereas Illinois, has followed the PHE Federal recommendations consistently. Iowa hospitals required to follow CMS COVID regulations, maintained vaccination and masking conditions though recently, I have seen most hospitals end masking requirements.
For providers, May 11 is very near. I suggest providers adopt the following strategies realizing, come May 11, regulatory confusion will likely remain.
- Update internal infection control policies regarding vaccination, testing, masking to conform to the changes that will occur with the end of the PHE.
- Communicate these changes to staff ASAP.
- Communicate these changes to patients and families, ASAP. Remember, the end of a mandate does not mean a change in behavior. It may be that staff will want to maintain their masks in some cases and patients/families the same. Allow for flexibility.
- State agencies that are required to survey and enforce compliance may also be slow to adopt. Trade associations are your best bet to help with regulatory transition. Recognize, state agency behavior will not adjust in some cases, as quickly as provider behavior.
- Conduct ongoing public communication via your website, via newsletters, etc. One and done won’t work.
- Definitely, DON’T, follow a path of resisting the end of the PHE and its requirements. I’ve watched provider sometimes, fail to adjust and in this failure, more problems occurred. I know the old “an ounce of prevention” thinking may still apply when it comes to vaccines or masking but be careful. If the regulation is not there, a forced or strongly urged condition, can lead to regulatory problems, labor law problems, community relations problems, and potentially, litigation.