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Medicaid Programs Need to Prepare Now for the End of the COVID Public Health Emergency

March 24, 2022


Barring a new COVID surge, all indications are that the Biden Administration will declare an end to the COVID public health emergency (PHE) sometime this year. Over the course of the pandemic, a PHE has been declared and extended at 90-day intervals. Unwinding of the PHE will be a critical event for Medicaid stakeholders.

The current PHE ends on April 16th.  The Administration has promised to give states 60-days’ notice before ending the emergency. To date, no notice has come. So, the PHE will continue beyond April 16th. What happens next is reading tea leaves. My read pins the end of the PHE to the end of the next federal fiscal quarter, or September 30, 2022. Tying the end date to the fiscal year would provide clarity for the Centers for Medicare & Medicaid Services (CMS) and state Medicaid agencies.

Unwinding of the PHE will be a critical event for Medicaid stakeholders—CMS and the states, Medicaid participating health plans and providers, and Medicaid enrollees. States, in particular, have work to do. All states are receiving significantly enhanced federal Medicaid funding during the PHE. This funding is conditioned on a “maintenance of effort” requirement that, with limited exceptions, prohibits states from terminating any individual’s coverage so long as the PHE is in effect. The maintenance of effort requirement has been a sound public health investment during the pandemic. The idea, of course, is to keep people tied to their health care life line—namely, their health insurance coverage.

As the PHE winds down, states will begin to return to business as usual. This will include limiting Medicaid to only those who are eligible. The  challenge is to keep eligible individuals enrolled and to link those who are no longer Medicaid eligible to other sources of coverage, such as that available through the Children’s Health Insurance Program or Affordable Care Act Marketplaces. 

There is great concern that states are not ready. By some recent estimates, nearly 16 million people could lose Medicaid coverage when the PHE ends.  Many of these people will lose coverage erroneously, meaning that they continue to qualify for Medicaid or CHIP/Marketplace coverage but will not get it. These problems will occur where the Medicaid computer and eligibility systems have not been updated and where eligibility redetermination procedures are not being verified and, where necessary, improved.

There are legal protections for Medicaid enrollees that should already be in place. For example, federal laws require states to make ex parte eligibility determinations before terminating an individual’s Medicaid coverage. This means that each state—on its own and without having to contact enrollees (ex parte)—must review various sources of data and information to determine whether an individual remains eligible for Medicaid, either under their current Medicaid category (e.g., a low-income child) or another Medicaid category (e.g., a disability). These legal protections also mean that, if the state ultimately determines the individual is no longer eligible under any Medicaid category, it must let them know and allow them to contest the denial. For example, the state Medicaid agency must provide the individual with a written notice explaining the basis for the termination, using terms and language the person can understand, and the opportunity for a pre-termination hearing. These “due process” rights are a vital constitutional protection against erroneous denials of coverage.

In addition to ensuring these basic protections are in place, there are a number of things that need to be happening in states now to make sure that people know that their coverage may be affected and that they understand the steps they need to take to ensure continuous coverage. These include updating computer systems, training new employees on redetermination procedures, and seeking updated addresses from current enrollees. CMS has published guidance and toolkits providing states with details on what to do and how—and is giving states a 14-month time period to fully update their Medicaid rolls.  This means that states should not act precipitously and jettison people willy-nilly from coverage. However, there are a tremendous number of eligibility determinations and redeterminations (with accompanying due process rights) that will need to occur. So, the time to get prepared is now. Otherwise, we face the prospect of massive increases in the number of uninsured people—a situation that would be unhealthy for individuals, financially distressing for the health care providers who serve them, and a sad step back from the health coverage and health access gains brought about by the Affordable Care Act.

This post was written by Jane Perkins, Senior Attorney, Network for Public Health Law –Southeastern Region Office.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.