Courtesy of the National Association for Home Care & Hospice (NAHC) and Alston & Bird LLP

A number of recent news stories have reported on legislation that President Biden has indicated he will sign in the near future. Home health care providers serving federal health care programs should be aware that this legislation does not pertain to the Public Health Emergency (PHE), which is scheduled to end on May 11, 2023. There are some areas of impact, but the PHE is designated by the Department of Health and Human Services (HHS) and the National Emergency Declaration must be made by the President.

House Joint Resolution 7 (H.J. Res. 7) has been passed by Congress to terminate the President's declaration of national emergency made on March 13, 2020, as a result of the COVID-19 PHE. Although President Biden previously opposed the legislation, he has indicated that he will sign it into law now that it has passed both chambers of Congress. Please note that this action will not affect the waivers and flexibilities implemented in accordance with the Secretary's COVID-19 PHE declaration or the Stafford Act declaration.

Providers should consider the following points:

• H.J. Res. 7 would terminate the President’s national emergency declaration pursuant to section 202 of the National Emergencies Act. H.J. Res. 7 is very specific, referencing then-President Trump’s original proclamation under the National Emergencies Act.
• The Stafford Act declaration, made by President Trump in March 2020, was made independently of the original National Emergencies Act declaration and is not impacted by H.J. Res. 7. Furthermore, Stafford Act declarations do not have pre-set terms (i.e., there is no “expiration” date specified in either statute or regulation).
• The Secretary’s COVID-19 PHE declaration was made pursuant to Section 319 of the Public Health Service Act and is not impacted by H.J. Res. 7.

As such, terminating the National Emergencies Act declaration alone does not impact the Secretary’s COVID-19 PHE declaration or the Stafford Act declaration, or the flexibilities/waivers implemented pursuant to those declarations. An additional point to note is that the 1135 waivers will not be terminated. Instead, they will remain in place so long as (1) either the National Emergencies Act or Stafford Act declaration is in place, and (2) the Secretary’s PHE declaration is in place. A Congressional Research Service report detailing these three emergency authorities can be accessed here.

For more information about the federal government's efforts to unwind the COVID-19 PHE, click here.