Shasita Paudel is a full-time 1L student at the Washington College of Law. Shasita is a recent graduate of Dickinson College, where she graduated cum laude, earning degrees in Political Science and Spanish. She is interested in intellectual property law and criminal law.
Throughout the pandemic, several legislative and federal policies were enacted in response to the effects of the pandemic. Most notably, the American Rescue Plan Act provided resources to the general public, including expanding healthcare coverage for 63% of uninsured individuals and providing access to free vaccinations and COVID-19 testing.[1]
The Biden administration has declared an end to the public health emergency involving the pandemic to end on May 11th, 2023.[2] If this declaration goes into effect as planned in May, this will stop government funding for items provided to the general public throughout the pandemic, including free access to COVID-19 tests, vaccines, and covid treatments.[3] Although it is likely that public and private health insurance will continue to bear the costs of these services, the uninsured will lose access.[4] In 2020, 9% of Americans (roughly about 31.6 million) were uninsured in the United States.[5] The end of emergency health benefits could prove dire to the uninsured. Research has shown that the American public is likely to believe that the public health emergency should continue and that immunocompromised individuals are feeling unheard as the country shifts towards a post-pandemic approach.[6] In addition, doctors cite concerns about an immediate transfer back into a “health care approach to health care,” stating that doing so “brings all of the weaknesses into our system into play.”[7]
However, from a general institutional standpoint, the pandemic no longer seems to be a cause for major concern. On January 31, 2023, the House passed the “Pandemic is Over Act,” which aims to end the public health emergency put into place during the height of the pandemic.[8]
There have been concerns expressed by organizations and groups of individuals concerned about the ramifications of ending the public health emergency regarding the Pandemic is Over Act and the Biden Administration’s declaration.[9]
Ashish Jha, the White House coordinator for COVID-19, highlights a working plan to ensure that the “uninsured have access to free treatments and free vaccines after we move to the regular healthcare system.”[10] As this plan is developing, there are also anti-covid measures across the country, with proposed legislation in Florida and Idaho that aim to ban and criminalize Covid-19 vaccines.[11] This raises appropriate questions about the extent to which state discretion will take over after the public health emergency has ended, particularly regarding Medicaid access and other resources.[12] Particularly regarding Medicaid access and state’s discretion, the Supreme Court had previously held in NFIB v. Sebelius that within the confines of the 10th Amendment, the federal government could not withdraw all Medicaid funds to states that did not expand Medicaid eligibility.[13] Any future plans from the White House regarding the uninsured and potential Medicaid access will have to work with the Sebelius standard, where states have the option to expand Medicaid eligibility.[14] It will be interesting to observe how the Sebelius standard and the Biden Administration’s plan will impact the uninsured and what states grant eligibility.
Overall, it appears to be likely that this declaration will continue as planned.[15] However, it is unclear if there is a concrete plan to protect the most vulnerable communities in our country from Covid-19.[16] It is imperative to observe if access to care will follow a certain pre-pandemic continuous historical trajectory or if there will be innovative reform. Current and historical trends highly favor the former.[17]
[1] American Rescue Plan Act of 2021, Pub. L. No. 117-2 (2021); see also Matthew Rae, et. al., How the American Rescue Plan Act Affects Subsidies for People who are Uninsured, Kaiser Family Found. (Mar. 25, 2021), https://www.kff.org/health-reform/issue-brief/how-the-american-rescue-plan-act-affects-subsidies-for-marketplace-shoppers-and-people-who-are-uninsured.
[2] Cynthia Cox, et. al., The End of the COVID-19 Public Health Emergency, Kaiser Family Found. (Feb. 03, 2023), https://www.kff.org/policy-watch/the-end-of-the-covid-19-public-health-emergency-details-on-health-coverage-and-access/.
[3] Id.
[4] Id.
[5] Amy E. Cha & Robin A. Cohen, Demographic Variation in Health Insurance Coverage, 169 Nat’l Health Statistics Reports. 1, 1 (Feb. 11, 2022), https://www.cdc.gov/nchs/data/nhsr/nhsr169.pdf.
[6] Ricky Zipp, A Slim Majority of Americans Say the COVID-19 Public Health Emergency is Still Necessary, Morning Consultant (Dec. 22, 2022), https://morningconsult.com/2022/12/22/2023-health-lookahead-covid-public-health-emergency/; Tina Reed & Sabrina Moreno, Immunocompromised worry they’re getting left behind again, Axios (Feb. 7, 2023), https://www.axios.com/2023/02/07/immunocompromised-covid-risk-left-behind-again.
[7] Alice Park, The U.S. COVID-19 Public Health Emergency will end in May, Time (Jan. 31, 2023), https://time.com/6251520/covid-19-public-health-emergency-ends-what-changes/.
[8] H.R.382 – 118th Congress (2023-2024): Pandemic is Over Act, H.R.382, 118th Cong. (2023), https://www.congress.gov/bill/118th-congress/house-bill/382.
[9] Tami Luhby, These benefits will disappear when Biden ends the Covid national and public health emergencies in May, CNN, (Jan. 31, 2023), https://www.cnn.com/2023/01/30/politics/may-11-end-of-covid-and-public-health-emergencies/index.html.
[10] Emily Hutto, Ashish Jha on the End of the COVID-19 Public Health Emergency, MedPage, (Feb. 24, 2023), https://www.medpagetoday.com/opinion/faustfiles/103278.
[11] Bruce Y. Lee, New Idaho Bill Would Criminalize Anyone Administering COVID-19 MRNA Vaccines, Forbes (Feb. 18, 2023), https://www.forbes.com/sites/brucelee/2023/02/18/new-idaho-bill-would-criminalize-anyone-administering-covid-19-mrna-vaccines/?sh=6ab244d73ba8; Bruce Y. Lee, Lee County, Florida, Republican Party Passes Resolution to Ban Covid-19 Vaccines, Forbes, (Feb. 24, 2023), https://www.forbes.com/sites/brucelee/2023/02/24/lee-county-florida-republican-party-passes-resolution-to-ban-covid-19-vaccines/?sh=2ef4886b36dc.
[12] Id.
[13] Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 522 (2012), see also Judith Solomon, Federal Action Needed to Close Medicaid Coverage Gap, Ctr. on Budget and Pol’y Priorities (May 6, 2021), https://www.cbpp.org/research/health/federal-action-needed-to-close-medicaid-coverage-gap-extend-coverage-to-22-million (where 12 states that refuse to expand Medicaid is the likely cause of 2.2 million still uninsured).
[14] Id.
[15] Sharon LaFraniere, U.S. Plans to End Public Health Emergency for Covid in May, NYT, (Jan. 30, 2023), https://www.nytimes.com/2023/01/30/us/politics/biden-covid-public-health-emergency.html.
[16] Id.
[17] Id.
