Federal determination of an ongoing public health emergency | Arent Renard

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On July 19, 2021, the Secretary of Health and Human Services (HHS) renewed the COVID-19 public health emergency (PHE) declaration, effective July 20, 2021.

With this renewal, unless otherwise specified, all existing 1135 waivers (waivers of various key healthcare legal requirements) put in place during the PHE will continue until the expiration of the PHE statement.

Under Section 1135 of the Social Security Act, the Secretary of HHS has the authority to issue waivers or modify Medicare, Medicaid, Children’s Health Insurance Program (CHIP), Health Insurance Portability and Liability Act (HIPAA) and Emergency Medical Treatment and Work. Act (EMTALA) when the President declares a disaster or major emergency or the HHS Secretary declares a PHE. In response to the PHE, the Secretary of HHS waived or amended many of the otherwise applicable supplier requirements.

It’s important to note that although the federal PHE has been extended, many states have rescinded their state PHE declarations. Therefore, state waivers that were in place during the initial period of PHE may no longer be in effect. Unless federal law supersedes state law for a particular matter or matter, providers must always comply with state law. If the state exemptions or waivers are no longer in effect, the provider may not retain the flexibility that is otherwise available under the federal PHE. For this reason, suppliers should be aware of applicable national laws when taking action under a waiver.

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