February 25, 2024

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Healthcare compliance in a post-pandemic world | Health Care Compliance Association (HCCA)

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Compliance Today – May 2023

On January 31, 2020, pursuant to Section 319 of the Public Health Service Act, the secretary of the U.S. Department of Health & Human Services (HHS) determined that a public health emergency (PHE) exists due to the soaring number of COVID-19 cases in the United States. In March 2020, President Donald Trump issued a national emergency declaration according to Section 201 of the National Emergencies Act. Nobody knew at the time that the PHE would last 1,196 days, or the extent to which the pandemic would strain the country’s healthcare system. Despite the best efforts of public health officials and healthcare providers, 102 million Americans would suffer from COVID-19, and 1.1 million would die. The pandemic was an event that happens once in a hundred years—an extreme situation requiring an extreme response.

The declaration of a national emergency and PHE gave the secretary of HHS, under Section 1135 of the Social Security Act, authority to waive or modify certain Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) requirements. A complete list of waivers was updated almost daily on the Centers for Medicare & Medicaid Services (CMS) website.[1] The flexibilities granted by CMS were designed to promote access to care and reduce the administrative burden on providers.

Both the national emergency and the PHE will cease at the end of the day on May 11, 2023. The fact that the pandemic lasted for over three years presents a special challenge for compliance officers. A report published in 2022 noted that in the previous five years, the average hospital turned over 100.5% of its workforce.[2] The average annual hospital turnover rate increased by 6.4% to 25.9%. The impact on hospitals is likely not a unique experience for other healthcare providers. This means that a significant percentage of the workforce can’t just go back to business as usual because they were not around when the flexibilities were not in effect. Compliance officers will have a significant lift to educate their staff on changes required with the expiration of the PHE.

This article aims to identify key waivers that will continue or expire to assist compliance officers in adapting policies and procedures to the post-pandemic world. This article also focuses on certain types of providers and discusses only certain issues. CMS has published provider-specific fact sheets that identify flexibilities issued during the pandemic and whether they will expire or continue, but these fact sheets are not comprehensive.[3] Other sources include the Consolidated Appropriations Act of 2023 (CAA)[4] and the 2023 Medicare Physician Fee Schedule (PFS).[5]

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