HHS Signals Commitment to “Predictability and Stability,” Extends Public Health Emergency Declaration “Likely” for Entirety of 2021 - McDermott Will & Emery

HHS Signals Commitment to “Predictability and Stability,” Extends Public Health Emergency Declaration “Likely” for Entirety of 2021



In a recent letter to state governors, Acting Secretary of Health and Human Services Norris Cochran signaled the US Department of Health and Human Services’ (HHS’s) commitment to “predictability and stability” in the ongoing response to the COVID-19 public health emergency (PHE). The acting secretary informed governors that HHS’s current PHE declaration, issued under section 319 of the Public Health Service Act, “will likely remain in place for the entirety of 2021.” The acting secretary further stated that HHS will provide governors with 60 days’ prior notice upon its decision to terminate the PHE or to let the declaration expire.

In Depth

States and healthcare providers will welcome this signal from HHS as they coordinate ongoing responses to the COVID-19 pandemic. Several flexibilities that states and healthcare providers have relied upon to respond effectively to the pandemic are tied to the PHE determination. The likely extension of HHS’s PHE declaration through 2021 will keep these important flexibilities in place as states and providers continue to plan for response efforts in 2021, including:

  • Telemedicine waivers to increase care accessibility
  • Certain waivers and modifications to Medicare, Medicaid, the Children’s Health Insurance Program, and the Health Insurance Portability and Accountability Act Privacy Rule requirements
  • The 6.2 percentage point increase in the Medicaid Federal Medical Assistance Percentage available to providers under the Families First Coronavirus Response Act

The acting secretary also signaled HHS’s commitment to the continued use of other emergency authorities, including Public Readiness and Emergency Preparedness Act declarations and emergency use authorizations for diagnostics, treatments and vaccines.

Key Takeaways

In planning ongoing response efforts, states and healthcare providers can now have more confidence that important flexibilities they relied upon in 2020, such as telemedicine waivers and enhanced Medicaid reimbursement, will remain in place throughout 2021 and that HHS plans to provide reasonable notice before the PHE is rescinded.