PHE: Is the End in Sight?

By
Original story posted on: June 24, 2020

During a recent Monitor Mondays broadcast, a listener, Rebecca, sent a question asking about the anticipated July 24 expiration of the federal public health emergency (PHE); specifically, she wanted to know about how much to worry about it.

My first reaction was that she was wrong, and that the public health emergency didn’t have an expiration date. I was quite confident that the emergency continued until U.S. Department of Health and Human Services (HHS) Secretary Alex Azar declared it over. In fact, I believed that the emergency had a wind-down period that continued after the Secretary declared it over.

My confidence was misplaced. The reality is that the emergency ends at the earlier date, either when the Secretary decides it’s over, or 90 days after its declaration. (The initial emergency was declared on Jan. 31, but applied retroactively to Jan. 27. It was then extended on April 26, which means it expires on July 24.) 

One would think that with cases rapidly increasing, the extension of the PHE would be obvious. Alas, news reports indicate that the administration is considering allowing it to expire (see, for example, this article). Given that there seems to be an attempt by some to pretend that the outbreak is over, there is certainly a risk that the emergency will not be extended.

But the focus of this article is mistakes. There is an important lesson about the value of actually looking at the law, rather than making assumptions about it. People often worry about hiring an out-of-state lawyer, assuming that a local lawyer will better understand state laws. I certainly understand that thought, but I want to share two stories to demonstrate that the risk of hiring an out-of-state lawyer may be much lower than you think. The stories also illustrate the peril of confidence.

In the first story, I come off looking pretty good. A client in Texas engaged me after the local hospital threw a bunch of physicians off the staff because of economic credentialing. Economic credentialing is when a hospital refuses to grant privileges to physicians who have a financial interest that competes with the hospital, such as owning an ambulatory surgery center or imaging equipment. In some states, it is legal for the hospital to terminate a physician from the staff solely because of that competition. In others, it’s not. After being engaged by the client in Texas, I did some research and discovered that Texas had a statute prohibiting economic credentialing. There were half a dozen Texas lawyers involved in the case, but none of them knew about that statute. I was pretty proud of myself. 

Alas, after the pride cometh the fall. It was just a few weeks later, when I was working for a client in my home state of Minnesota, that an out-of-state lawyer called my attention to a Minnesota law I had never heard of. Again, we often think of a local lawyer as knowing the law better, and there are certainly times this is true. There are a few quirky statutory provisions that an out-of-towner may not easily discover. But regular practice in an state can result in overconfidence. Someone coming in from out of town and with fresh eyes is more likely to do a careful review of the law. Such a review can be more expensive, but it can also be more fruitful. The skill of balancing the cost-benefit of exhaustive legal research is perhaps one of the most important traits you want in a lawyer. 

To recap, it is important to actually look at the law, rather than assume you know the answer. And it can be useful to engage a lawyer who has some humility. And don’t feel like you’re limited to engaging local lawyers. It’s a big country, with lots of talented legal minds. Seek out the best. 

David M. Glaser, Esq.

David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Mondays and a member of the RACmonitor editorial board.

 

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