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What Happens When COVID-19 Emergency Declarations End?
Implications for Coverage, Costs, and Access

Published: Jan 31, 2023

https://www.kff.org/coronavirus-covid-19/issue-brief/what-happens-when-covid-19-emergency-declarations-end-implications-for-coverage-costs-and-access/

On Jan. 30, 2023, the Biden Administration announced its intent to end the national emergency and public health emergency declarations on May 11, 2023, related to the COVID-19 pandemic. These emergency declarations have been in place since early 2020, and gave the federal government flexibility to waive or modify certain requirements in a range of areas, including in the Medicare, Medicaid, and CHIP programs, and in private health insurance, as well as to allow for the authorization of medical countermeasures and to provide liability immunity to providers who administer services, among other things. In addition, Congress also enacted legislation—including the Families First Coronavirus Response Act (FFCRA), the Coronavirus Aid, Relief, and Economic Security (CARES) Act , the American Rescue Plan Act (ARPA), the Inflation Reduction Act (IRA), and the Consolidated Appropriations Act, 2023 (CAA)—that provided additional flexibilities tied to one or more of these emergency declarations, and as such they too are scheduled to expire when (or at a specified time after) the emergency period(s) expires.

This brief provides an overview of the major health-related COVID-19 federal emergency declarations that have been made, and summarizes the flexibilities triggered by each in the following areas:

• Coverage, costs, and payment for COVID-19 testing, treatments, and vaccines
• Medicaid coverage and federal match rates
• Telehealth
• Other Medicaid and CHIP flexibilities
• Other Medicare payment and coverage flexibilities
• Other private insurance coverage flexibilities
• Access to medical countermeasures (vaccines, tests, and treatments) through FDA emergency use authorization (EUA)
• Liability immunity to administer medical countermeasures

This is not meant to be an exhaustive list of all federal policy and regulatory provisions made in response to COVID-19 emergency declarations. For example, we do not cover the entire range of federal and state emergency authorities exercised under Medicaid Disaster Relief State Plan Amendments (SPAs), other Medicaid and CHIP SPAs, and other state-reported administrative actions; Section 1115 waivers; Section 1135 waivers; and 1915 (c) waiver Appendix K strategies. The Centers for Medicare & Medicaid Services maintains a more complete list of coronavirus waivers and flexibilities that have been exercised since early 2020; some state actions to respond to the emergency may have expiration dates that are not tied to the end of the federal emergency declarations. This brief also does not include all congressional actions that have been made affecting access to COVID-19 vaccines, tests, and treatment that are not connected to emergency declarations, such as coverage of COVID-19 vaccines under Medicare and private insurance (see Commercialization of COVID-19 Vaccines, Treatments, and Tests: Implications for Access and Coverage for more discussion of these issues).

Overview of Major Health-Related COVID-19 Federal Emergency Declarations:

The early days of the COVID-19 pandemic were marked by several emergency declarations made by the federal government, under several broad authorities, each of which has different requirements related to expiration.

A public health emergency(PHE) was initially declared by the Secretary of the Department of Health and Human Services (HHS) in late January 2020, pursuant to Section 319 of the Public Health Service Act. A PHE lasts for 90 days and must be renewed to continue; the PHE for COVID-19 has been renewed several times, most recently in January 2023, and is currently scheduled to expire on May 11, 2023. The Biden Administration previously stated that it would give states a 60-day notice before the PHE expires.

A national emergency declaration was issued by former President Donald Trump in March of 2020, pursuant to Section 201 of the National Emergencies Act. A national emergency declaration is in effect unless terminated by the President, or through a joint resolution of Congress, or if the President does not issue a continuation notice annually. Such a notice was issued by President Trump to continue the emergency beyond March 1, 2021, and by President Biden to continue beyond March 1, 2022. As announced by the Biden Administration on Jan. 30, 2023, the administration plans to extend the national emergency to May 11, 2023, then end it on that date.

A separate emergency declaration pursuant to Section 564 of the Federal Food, Drug, and Cosmetic (FD&C) Act was issued by the Secretary of HHS in February 2020. Based on this determination, on March 27, 2020, the Secretary declared that circumstances existed to justify emergency use authorization (EUA) of medical countermeasures for COVID-19. An EUA is a mechanism to facilitate availability and use of medical countermeasures that are determined to be safe and effective but have not yet been formally approved. An emergency declaration issued pursuant to Section 564 of the FD&C Act remains in effect until terminated by the HHS Secretary. The timing to conclude the EUA is to be determined; it will not conclude on May 11, 2023, with the other declarations.

A declaration under the Public Readiness and Emergency Preparedness (PREP) Act (pursuant to Section 319F-3 of the Public Health Service Act) was issued by the Secretary of HHS in March 2020. This declaration provides liability immunity for activities related to COVID-19 medical countermeasures. Since then, 10 amendments to the declaration have been issued to extend liability protections related to COVID-19 countermeasures. For a PREP Act emergency determination, the Secretary must specify an end date; in this case, it has been set as October 1, 2024, in most cases (although there are some exceptions).