During the recent pandemic, a Public Health Emergency (PHE) was introduced to address the spread of the COVID-19 virus. This called for a coordinated response from the government, agencies, and healthcare organizations to provide a national framework to manage and minimize the virus’s impact while protecting public health.
On January 31, 2020, the U.S. Department of Health and Human Services (HHS) declared the first federal PHE to combat COVID-19. The government has since extended the PHE twelve times, with the latest extension ending on May 11, 2023.
During the federal PHEs, healthcare providers—including long-term care facilities—were given much-needed waivers and flexibility to continue operations while introducing new practices to manage the virus safely, such as:
- Vaccines
- Treatments
- Testing
- Healthcare access
- Inpatient hospital care at home
- Telehealth services
These PHE measures were essential for long-term care facilities, as elderly residents were at greater risk and more vulnerable to the virus. By introducing PHE measures, long-term care facilities were given more guidance and support to tackle the virus with effective response strategies and plans, including seasonal influenza surveillance, nationwide testing for SARS-CoV-2, and monitoring COVID-19-related mortality.
Still, the deadly virus, coupled with longstanding industry problems—such as staffing shortages, supply chain disruptions, and insufficient infection prevention and control measures—resulted in high morbidity and mortality rates in facilities, especially at the beginning of the pandemic.
Fortunately, an extensive vaccination program that saw approximately 270 million Americans receive at least one COVID-19 vaccination has resulted in a sharp 92% drop in daily COVID cases, an 80% decline in new COVID hospitalizations, and an 80% reduction in COVID-related deaths.
Ultimately, the eventual success of the PHE measures and vaccination program led the Biden Administration to declare the end of the PHE in regard to COVID, with the official termination date being May 11, 2023. The government contends that, while the pandemic is far from over, it is now more manageable thanks to federal efforts to combat the virus, putting the country in a stronger position to respond and transition away from an emergency phase.
In the following sections, we will examine how the PHE measures impacted long-term care facilities and how facilities can transition back to pre-pandemic operations after PHE measures are removed.
Understanding Emergency Immunity Shields
One significant concern caregivers for seniors, who are the most vulnerable to the virus, had while caring for residents during the pandemic was the increased risk of legal liabilities for facilities. And so practical steps were taken to reduce these risks, such as introducing emergency immunity shields, also known as liability shields, to mitigate risk while providing more federal and state protection for long-term care facilities.
Depending on the state, PHE immunity shields protect facilities from COVID-19 deaths, injuries, and criminal liability. But they do not eliminate risk entirely. Rather, immunity shields only protect facilities from civil liability suits in cases where the nursing home can prove its actions align with the state’s COVID-19 regulations, were conducted in good faith, and were in a state of emergency.
If facilities are found to violate this good faith with reckless misconduct or gross negligence, their actions will not be protected by immunity shields.
Since PHE immunity shields were implemented, there has been a heavy debate for and against them. Here are some of the arguments from each side:
The arguments against immunity shields: Those who oppose immunity shields argue that they violate the constitutional process of providing equal protection and separation of power doctrines, ultimately limiting the governor’s powers to pass executive orders during the pandemic.
Additionally, critics argue that the immunity protections potentially reduce accountability for long-term care facilities and other healthcare providers in cases where negligence or misconduct contributed to COVID-19-related harms or deaths.
The arguments for immunity shields: Meanwhile, those in favor of state immunity shields argue that state actors have the authority to pass and execute executive orders as long as the state has declared an emergency.
Furthermore, immunity shields protect nursing homes and facilities from extensive litigation suits following the pandemic outbreak. Facilities often found themselves in situations beyond their control, making it impossible to prevent transmission, mainly due to asymptomatic carriers, inadequate PPE, or access to testing and vaccinations.
So while these immunity protections reduce the risk of COVID-19-related lawsuits, there is still the risk of gross negligence and misconduct, even when facilities observe the recommended infection control protocol.
Emergency immunity protections in long-term care facilities are an ongoing debate because it is still too early to say how it has impacted the industry. Further analysis will be needed to realize the full effects of these protections, especially as the country transitions away from PHE operations and back to the “new normal.”
Next, we will discuss the upcoming PHE termination date and how it will impact long-term care facilities and residents.
Contact us here to learn how our user-friendly long-term care software can improve operations in the “new normal.”
When Does the PHE Expire and How Will it Impact Long-term Care Facilities?
So, when does the PHE expire? The PHE for the COVID pandemic expires on May 11, 2023. PHE stipulations will also come to an end on that date. To learn more about what those are, refer to the CMS PHE fact sheet, which includes information on emergency regulations, waivers, and guidelines that were put in place to ensure healthcare providers could continue providing care.
Since the Biden Administration announced the end of PHE, many long-term care facilities have been concerned about the impending changes and their impact. In light of the PHE end date, facilities must prepare before the emergency immunity expiration date by understanding what changes will come.
- Medicare’s three-day rule
Before the federal PHE, to qualify for Medicare Part A’s post-acute care in a skilled nursing facility, patients must first be admitted into a hospital for at least three days. However, during PHE, a waiver was introduced, allowing patients to qualify for Medicare Part A coverage without meeting this three-day hospital stay qualifying criteria. Rather, patients could be admitted directly into a skilled nursing facility.
With the end of PHE in May 2023, this waiver will also be terminated, meaning Medicare beneficiaries will once again need to pay for skilled nursing care privately or through their long-term care insurance policy unless they are first admitted as an inpatient in a hospital for three days or more.
- COVID-19 treatment
Even though PHE was temporary, the measures have now been in operation for three years. One measure initiated during the PHE was that COVID testing kits and treatment drugs, such as Paxlovid, were made free for Medicare recipients. But once the PHE ends, Medicare recipients must contribute towards some costs, such as paying for tests and treatments. Of course, COVID vaccination will remain free.
- Telehealth services
During the PHE, telehealth medical visits were widely used, partly because Medicare paid for the care and because they were virtual visits, aligning with social distancing regulations. Even though telehealth services were available before the pandemic, there was a significant increase in telehealth visits, from approximately five million in 2019 to more than 53 million visits in 2020.
The current trajectory for Medicare-covered telehealth services will be terminated along with PHE. On the plus side, the Consolidated Appropriations Act of 2023 was authorized to extend these benefits until December 31, 2024. After that, Congress must readdress the topic to determine whether Medicare will continue to pay for telehealth services.
- Nursing home training and certifications
As part of its response to the pandemic, Medicare waived several staffing and training rules for nursing aides related to training and certification. And though this waiver was terminated in June 2022, there is still a significant backlog of nursing aide training nationwide. This led the CMS to introduce additional state, local, facility, and individual waivers to give CNAs more time to get their certifications.
These waivers are time-specific, tied to PHE, and will not extend beyond PHE. However, in light of the backlog, nursing aides will be given an additional four months to complete their training and certification after PHE ends, allowing them to continue working in nursing homes.
- Reintroduction of services for home health and hospices
As part of PHE policy, home health and hospice services were allowed to drop certain services (like volunteer visits) and therapy services (like occupational, speech, and physical therapy). However, after PHE ends, these services must be resumed and be made available again.
- Medicaid enrollment
One of the ways the government offered relief during the pandemic was through additional provisions and funding to make Medicaid more accessible. However, as a prerequisite, states could not drop patients from Medicaid during PHE.
Once PHE ends, this rule will no longer apply, meaning states will once again have the power to pick and choose Medicaid enrollees. Those who fail to meet the eligibility requirements will be dropped, ultimately impacting who will have access to care and their quality of care.
- State Medicaid flexibility
Part of the response to the pandemic was to give states a broad waiver of flexibility for home-based initiatives. This meant that Medicaid recipients were entitled to long-term care in nursing homes, with the state providing home care benefits under the federal government waiver. However, these waivers will end with PHE. Some will terminate immediately, some will end in 60 days, while others may continue for another six months.
With the end of PHE, there will undoubtedly be a period of change and transition. Healthcare providers will need time to re-train their staff for the “new normal,” with some wondering optimistically, “Will the public health emergency be extended again?”
While it seems unlikely that PHE will be reintroduced, policymakers must consider the implications and how they will impact facility operations and, ultimately, resident care. Therefore, it is worth asking—should some waivers be extended or kept permanently for the sake of residents?
Planning Ahead for PHE Termination
The COVID-19 pandemic and the subsequent declaration of a Public Health Emergency (PHE) by the HHS led to the introduction of measures that supported long-term care facilities during an unprecedented time. PHE measures included immunity shields, which reduced liability risk for facilities and supported facilities to adopt effective response strategies and plans.
With the Biden Administration declaring an end to the PHE, teams must think strategically about transitioning back to pre-pandemic operations. Facilities can manage operation changes better by providing real-time data analysis, improving communication between caregivers, and enabling efficient resource allocation through the use of long-term care software and automated processes.
In fact, elder care software has already made a major difference in managing resident affairs during the pandemic. It allows caregivers to monitor potential outbreaks, identify potential risks, and implement preventive measures to ensure the safety of residents and staff. Additionally, it has assisted in managing vaccine distribution and administration, contact tracing, and reporting to regulatory bodies.
So as the end of PHE approaches, long-term care facilities should ensure that they have an efficient nursing home software system in place. This essential tool will undoubtedly play a significant role in mitigating the impact of PHE and providing better resident care.
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