By Daniel Cornellier, JHBL Staff Member
With the Biden administration set to end the national emergency status of the COVID-19 pandemic, numerous policies in place are set to expire, leaving many Americans wondering, “what now?”[1] Given that COVID has given Americans—and further, the world—a new “normal,” what will this policy shift mean for the American people?[2]
For context, on January 31, 2020, the Secretary of Health and Human Services for the United States declared a public health emergency in response to the initial outbreak of the coronavirus, which occurred a month prior in Wuhan, Hubei Province, China.[3] Taking a matching step, on March 13, 2020, former President Donald Trump declared COVID-19 a national emergency.[4] By the end of March, 2020, governors within the individual states called for their own emergency orders, plunging both levels of American federalism into a reactive state against a novel and frightening disease.[5] Within the midst of COVID chaos, policy sympathetic to Americans arose, with eviction moratoriums, economic relief, and COVID test-kit handouts creating opportunities for members of the public to bounce back from an already difficult period.[6] Vaccine mandates further created a stir within the political sphere, with primarily Democrats supporting such mandates, and a wide array of Republicans supporting vaccination only through personal choice of the individual.[7] While cases like National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration[8] attempted to specify the government’s role in vaccine mandates, vaccine policy was under great scrutiny and debate at the high point of COVID in 2020 and 2021.[9] Today, COVID-era policies still in effect include: (1) free or affordable COVID-19 tests for qualifying individuals; (2) insurance coverage of COVID-19 treatment; and (3) the barring of states from disenrolling their citizens from Medicaid.[10] With the Biden administration close to ending the national COVID state of emergency, changing or even revoking the policies above, one question remains: how will this shift affect the American people?[11]
First, a lack of affordable COVID testing may negatively impact those in need.[12] In 2021, the American Rescue Plan was signed into law, requiring state Medicaid and Child Health Insurance Programs to cover FDA-approved home COVID tests.[13] Later, in January of 2022, to remedy pricing and availability of COVID testing, the Biden administration also required private insurance companies to cover home COVID tests.[14] At this time as well, the Biden administration began to provide free COVID tests to all, including the uninsured.[15] This move initially caused those worried about funding to have some solace in the ability to test for COVID if symptoms arose.[16] Yet, by the end of 2022, the free COVID test for all program was met with lapses in funding, thereby causing a lack in the program’s availability and consistency.[17] Additionally, in April of 2022, the Biden administration required home COVID test coverage by Medicare Advantage and Medicare Part B.[18] Presently, the COVID testing policies set to end soon include the requirement of private and Medicare coverage for home COVID tests.[19] Medicaid beneficiaries will still have home COVID tests covered for a year after the state of public emergency ends, but after, will be at the mercy of their home-state in terms of coverage.[20]
Typically, a COVID test can cost between $20 and $850, depending on test variation.[21] While the median price of a COVID test is around $130, and home test kits can be bought as low as $25 from common drug stores, purchasing even the cheapest COVID tests can cause challenges for those with little income.[22] In 2021, it was reported that 18.4% of the American population had Medicare coverage.[23] Of that statistic, 13% were found to live in poverty.[24] Additionally, Medicaid eligibility has been based in targeting those with low-income, and it is understood that even those with private insurance may struggle to make ends meet.[25] Thus, while it was always predicted COVID would have to end at some point, and financial accessibility to COVID testing would eventually be limited, the simple assessment as to whether someone has COVID will become an expensive habit for an individual facing financial hardship.[26] Despite tests ordered by healthcare professionals being potentially covered under certain plans, such as Medicaid and Medicare, other means of coverage may still require lab testing fees, thereby creating a lack in financial accessibility to COVID tests overall.[27]
Secondly, a lack of guaranteed COVID treatment will likely financially and physically injure those unable to afford treatment.[28] Medicare and Medicaid have so far covered COVID treatments, and the federal government has been able to provide free antiviral medication to those infected.[29] However, with the state of emergency soon ending, the cost of treatment will begin to fall to the American people.[30] Without aid, a single course of COVID treatment medication can cost from $530 to $700 per course, depending on supplier, and Medicare and Medicaid beneficiaries may face steep costs for such treatment.[31] While private policyholders will have to assess how much their own insurance companies will cover, COVID treatment will act as another expensive consequence of ending the COVID state of emergency.[32] This will in turn physically injure those who cannot afford COVID treatment, by requiring them to suffer with the disease, or cause financial hardship to those who spend a great percentage of their income on treatment.[33]
Third, those currently on Medicaid may soon lose their enrollment status due to the end of the emergency state.[34] Before, states were unable to disenroll their citizens from Medicaid due to federal restrictions.[35] In time, however, this restriction will lose force, allowing states to cease Medicaid enrollment for its citizens, and then require an application for re-enrollment.[36] Considering that, as of October of 2022, more than 91 million Americans have been enrolled in their state’s Medicaid or Children’s Health Insurance Program, a decision to cease enrollment by the states could impact an inordinate number of people.[37] Though application for re-enrollment could be carried out by the citizenry, some may be unable to complete renewals or have the ability to seek other coverage, thereby causing some to be fully stripped of coverage.[38]
Again, how will the Biden administration’s end to the COVID state of emergency affect the American people? Simple- COVID testing and treatment will create financial and physical struggles for those unable to afford out-of-pocket expenses, and those on Medicaid may lose coverage. Only time will tell how Americans will respond to these struggles.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.
Daniel Cornellier is currently a law clerk at a transactional law firm specializing in alcoholic beverage law. His professional interests include intellectual property law, food and beverage law, and federal appellate matters.
[1] See Tami Luhby, Phil Mattingly, & Jeremy Diamond, These benefits will disappear when Biden ends the Covid national and public health emergencies in May, CNN POLITICS (Jan. 31, 2023), https://www.cnn.com/2023/01/30/politics/may-11-end-of-covid-and-public-health-emergencies/index.html (stating COVID-era benefits will soon be lost).
[2] See Ezekiel J. Emanuel, A National Strategy for the “New Normal” of Life With COVID, JAMA (Jan. 6, 2022), https://jamanetwork.com/journals/jama/fullarticle/2787944#:~:text=Consequently%2C%20a%20%E2%80%9Cnew%20normal%20with,(RSV)%2C%20and%20more (quoting COVID-19 as part of the “new normal”).
[3] Proclamation No. 9994, 85 Fed. Reg. 15337, 15337 (Mar. 13, 2020), https://www.federalregister.gov/documents/2020/03/18/2020-05794/declaring-a-national-emergency-concerning-the-novel-coronavirus-disease-covid-19-outbreak.
[4] Id.
[5] Compare id. (showing federal reaction to COVID-19), with COVID-19 Timeline, CTRS. FOR DISEASE CONTROL PREVENTION: DAVID J. SENCER CDC MUSEUM: ASS’N WITH SMITHSONIAN INST., https://www.cdc.gov/museum/timeline/covid19.html#:~:text=March%2015%2C%202020,the%20spread%20of%20COVID%2D19 (stating that on March 15, 2020, states implemented COVID-19 shutdown orders).
[6] See, e.g., National Moratorium, NAT’L LOW INCOME HOUSING COAL., https://nlihc.org/coronavirus-and-housing-homelessness/national-eviction-moratorium. “The Centers for Disease Control and Prevention (CDC) took unprecedented action by issuing a temporary national moratorium on most evictions for nonpayment of rent to help prevent the spread of coronavirus.” Id. See also Covid-19 Economic Relief, U.S. DEP’T TREASURY, https://home.treasury.gov/policy-issues/coronavirus (showing a variety of COVID-related economic relief programs); Biden-Harris Administration Requires Insurance Companies and Group Health Plans to Cover the Cost of At-Home COVID-19 Tests, Increasing Access to Free Tests, HHS.GOV (Jan. 10, 2022), https://www.hhs.gov/about/news/2022/01/10/biden-harris-administration-requires-insurance-companies-group-health-plans-to-cover-cost-at-home-covid-19-tests-increasing-access-free-tests.html.
[7] Compare Maeve Reston, Republicans seize on federal vaccine mandates to fire up their base and try to court new voters worried about the economy, CNN POLITICS (Nov. 12, 2021), https://www.cnn.com/2021/11/12/politics/republicans-covid-vaccine-mandates/index.html (reporting on Republican rhetoric of personal vaccine choice), with Giancarlo Pasquini & Emily Saks, Partisan differences are common in the lessons Americans take away from COVID-19, PEW RSCH. CTR. (Sept. 6, 2022), https://www.pewresearch.org/fact-tank/2022/09/06/partisan-differences-are-common-in-the-lessons-americans-take-away-from-covid-19/ (stating positive sentiment toward vaccine mandates by Democrats).
[8] 142 S. Ct. 661 (2022).
[9] See id. at 665 (stating the Secretary of Labor may not set “broad public health measures”). Infra Alec Tyson, Courtney Johnson, & Cary Funk, U.S. Public Now Divided Over Whether To Get COVID-19 Vaccine, PEW RSCH. CTR. (Sept. 17, 2020), https://www.pewresearch.org/science/2020/09/17/u-s-public-now-divided-over-whether-to-get-covid-19-vaccine/ (summarizing vaccine debate in 2020); Political and medical trust issues: Expert panel debates why some Americans doubt the COVID vaccine, VANDERBILT (Aug. 20, 2021, 9:46 A.M.), https://news.vanderbilt.edu/2021/08/20/political-and-medical-trust-issues-expert-panel-debates-why-some-americans-doubt-the-covid-vaccine/ (describing expert discussion on 2021 COVID vaccine debate).
[10] See Luhby, supra note 1.
[11] Id.
[12] Infra John Sharfstein, Q&A: How Much Does It Cost to Get a COVID-19 Test? It Depends, JOHN HOPKINS UNIV. & MED., https://coronavirus.jhu.edu/from-our-experts/q-and-a-how-much-does-it-cost-to-get-a-covid-19-test-it-depends (showing potentially high costs for COVID testing).
[13] American Rescue Plan Act of 2021, Pub L. No. 117-2, § 9811 (2021), https://www.congress.gov/bill/117th-congress/house-bill/1319.
[14] See Biden-Harris Administration Requires Insurance Companies, supra note 6.
[15] Fact Sheet: The Biden Administration to Begin Distributing At-Home, Rapid COVID-19 Tests to Americans for Free, WH.GOV (Jan. 14, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/01/14/fact-sheet-the-biden-administration-to-begin-distributing-at-home-rapid-covid-19-tests-to-americans-for-free/#:~:text=A%20half%2Dbillion%20tests%20will,be%20requested%20per%20residential%20address.
[16] Infra id.
[17] See Spencer Kimball, Biden administration makes at-home Covid tests available for free again this winter, CNBC (Dec. 15, 2022), https://www.cnbc.com/2022/12/15/biden-admin-free-covid-home-tests.html (stating lack of funding during September of 2022 for free COVID test program).
[18] Biden-Harris Administration Announces a New Way for Medicare Beneficiaries to Get Free Over-the-Counter COVID-19 Tests, CMS.GOV (Apr. 4, 2022), https://www.cms.gov/newsroom/press-releases/biden-harris-administration-announces-new-way-medicare-beneficiaries-get-free-over-counter-covid-19#:~:text=The%20Biden%2DHarris%20Administration%20is,19%20tests%20at%20no%20cost.
[19] See Luhby, supra note 1; see also Aria Bendix, Costs for Covid tests and treatments may rise after federal emergency declarations end in May, NBC NEWS (Jan. 31, 2023), https://www.nbcnews.com/health/health-news/costs-covid-tests-treatments-emergency-declarations-end-rcna68397.
[20] Id.
[21] Sharfstein, supra note 12.
[22] See id.; see also, e.g., Yuki Noguchi, Why rapid COVID tests are in short supply in the U.S., NPR (Dec. 27, 2021), https://www.npr.org/sections/health-shots/2021/12/10/1062700278/how-the-u-s-got-on-the-slow-track-with-at-home-covid-tests (discussing doctor who has patients that cannot afford the cheapest COVID tests). Compare COVID-19 Antigen Rapid Self-Test at Home Kit, WALGREENS, https://www.walgreens.com/store/c/binaxnow-covid-19-antigen-rapid-self-test-at-home-kit/ID=300414527-product (last accessed Feb. 3, 2023), with COVID-19 Home Test, CVS, https://www.cvs.com/shop/home-health-care/home-tests/home-covid-test (last accessed Feb. 3, 2023) (showing $23.99 COVID test kits within both stores).
[23] Percentage of U.S. Americans covered by Medicare 1990-2021, STATISTA (Sept. 15, 2022), https://www.statista.com/statistics/200962/percentage-of-americans-covered-by-medicare/.
[24] Distribution of Medicare beneficiaries, by federal poverty level 2015-2021, STATISTA (Nov. 29, 2022), https://www.statista.com/statistics/248036/distribution-of-medicare-beneficiaries-by-federal-poverty-level/#:~:text=In%202021%2C%2013%20percent%20of,poverty%20level%20(%3D100%25).
[25] See Medicaid Eligibility, MEDICAID.GOV, https://www.medicaid.gov/medicaid/eligibility/index.html (last accessed Feb. 3, 2023) (showing eligible classes being of low-income). Infra Michael Ollove, Many Patients Can’t Afford Health Costs Even With Insurance, PEW (Oct. 7, 2022), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2022/10/07/many-patients-cant-afford-health-costs-even-with-insurance (showing avoidance of treatment due to underlying treatment costs not covered by insurance).
[26] See Alvin Powell, HARV. GAZETTE (Oct. 11, 2022),
https://news.harvard.edu/gazette/story/2022/10/is-pandemic-finally-over-we-asked-the-experts/ (stating officials say the end of the pandemic is soon); see also With Government Funding Running Out, Americans Could Soon Face New Challenges in Accessing COVID-19 Treatments and Testing, KFF (Oct. 18, 2022), https://www.kff.org/coronavirus-covid-19/press-release/with-government-funding-running-out-americans-could-soon-face-new-challenges-in-accessing-covid-19-treatments-and-testing/ (discussing commercial market defining COVID pricing and limiting financial access to COVID tests).
[27] See Luhby, supra note 1.
[28] See Noah Weiland & Sarah Kliff, For the Uninsured, Covid Care Has Entered a New Stage of Crisis, N.Y. TIMES (Dec. 6, 2022), https://www.nytimes.com/2022/12/06/us/politics/covid-testing-treatment-uninsured.html (discussing difficulties of the poor and uninsured receiving COVID treatment).
[29] See Luhby, supra note 1.
[30] Id.
[31] Kristen Gerencher & Christina Aungst, COVID-19 Pills Tracker: Live Updates on How to Find Paxlovid and Lagevrio, GOOD RX HEALTH (Jan. 26, 2023), https://www.goodrx.com/conditions/covid-19/covid-pill-cost-availability (stating treatment costs). See Luhby, supra note 1 (discussing lack of coverage for COVID treatments).
[32] Id.
[33] See Weiland.
[34] See Luhby, supra note 1.
[35] Suzanne Wikle & Jennifer Wagner, Unwinding the Medicaid Continuous Coverage Requirement, CLASP (Mar. 9, 2022), https://www.cbpp.org/research/health/unwinding-the-medicaid-continuous-coverage-requirement.
[36] Id.
[37] Infra October 2022 Medicaid & CHIP Enrollment Data Highlights, MEDICAID.GOV (Jan. 4, 2023), https://www.medicaid.gov/medicaid/program-information/medicaid-and-chip-enrollment-data/report-highlights/index.html (showing millions of Americans on Medicaid and CHIP).
[38] See Wikle, supra note 34.