Site icon

Health Policy Responses to COVID-19

  • Health Policy News Team

    • In this unprecedented time, much attention has been paid to Congressional response to the clinical and economic needs resulting from the COVID-19 pandemic. At the same time, Congress, the Centers for Medicare and Medicaid Services (CMS) and other federal agencies have actively put forth legislation and guidance aimed at providing greater flexibility to states and providers as they struggle to meet health and service delivery demands during this global pandemic. Recent policy developments also provide direction to public insurance programs and private insurers regarding coverage of COVID-19-related testing and services, as well as other health care needs. Below, we summarize each of these federal efforts and  highlight examples of state-level action to address local needs.

    We have divided this month’s edition into four topics that address a range of federal and state activity this past month. Click the links below to access them:

    Each piece below aims to provide states with information about recent policy changes that have gotten less national coverage over the last weeks. HPN does not outline the clinical guidance specific to safely treating COVID-19. That information is available at https://www.hhs.gov/about/news/coronavirus/index.html.

    This is a quickly evolving situation, and these articles outline the status of regulatory information as of the time of production (March 27, 2020). We encourage state regulators and other readers to stay up-to-date on guidance from the federal level—in particular, by regularly checking CMS’s updates.

    CMS Provides Flexibility to Public Health Care Programs During the COVID-19 Pandemic via Medicaid Waivers

    Section 1135 Waivers

    By virtue of the declaration of a public health emergency by the U.S. Department of Health and Human Services (HHS) on January 31st and the President’s declaration of a national state of emergency on March 13th, states now have new Medicaid waiver authority available to them—which many quickly sought to tap. Section 1135 Waivers allow certain federal provisions relative to Medicare, Medicaid and the Children’s Health Insurance Program (CHIP) to be temporarily waived or modified to ensure the availability of sufficient health care items and services to meet beneficiaries’ needs. These can include provisions relative to provider participation, certain coverage requirements, Emergency Medical Treatment and Labor Act (EMTALA) requirements, provider self-referral restrictions, performance timelines, and provider payment. These waivers are temporary and will end at the end of the emergency period.

    As of March 27th, 34 states[1] have been granted Section 1135 Waivers, which are provided on an expedited timeline given the emergency circumstances. These waivers are specific to the needs in the states; while CMS noted that it provided blanket waivers specific to Medicare (which are outlined in our article on public programs), it has approved a number of waivers specific to Medicaid and CHIP. The waivers are specific to an individual state’s needs.

    Each of the waivers is effective as of March 1st for the duration of the states of emergency.

    States considering Section 1135 Waivers should consult the CMS toolkit for additional guidance and tools. Updates on and links to states’ waiver approvals can also be found on CMS’s website.

    Section 1115 Waivers

    As outlined in a recent CMS FAQ, states have the ability during this time to amend existing Section 1115 Waivers for broader flexibility needed to respond to the pandemic. Similar to the flexibility provided for public input requirements relative to COVID-19-related SPAs, CMS is granting exemptions and alternatives for Section 1115 public notice requirements.

    Section 1915(c) Home and Community Based Service Waivers

    As with the opportunity to amend existing Section 1115 Waivers, states can submit amendments to Home and Community Based Services (HCBS) Section 1915(c) Waivers. As outlined in CMS’s recent FAQ, states may complete Appendix K to alert CMS of changes expected to state waiver operations as a result of an emergency, which may be approved retroactively. Such changes could include: Establishing a hotline, increasing the number of individuals served under a waiver, creating an emergency person-centered service plan, expanding provider qualifications, increasing the pool of providers who can render services, instituting or expanding opportunities for self-direction, and/or permitting payment to HCBS providers when an individual is in a short-term hospital or institutional stay.

    Additionally, Appendix K allows states to:

    Appendix K can be found here.

    Footnotes

    [1] As of March 25th, Section 1135 Waivers had been granted to: Alabama, Arizona, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Virginia, Washington state and Wyoming.

    Back to top

    Congress and CMS Issue Guidance and Requirements Relative to Public Health Care Programs and COVID-19

    CMS has regularly issued guidance relative to Medicare, as well as state Medicaid and CHIP programs since the start of the COVID-19 pandemic. This guidance, paired with targeted legislation passed at the federal level, puts forth and outlines flexibilities and requirements aimed at addressing the broad impact of the pandemic.

    While much of the guidance relates specifically to clinical care, in this section, we highlight key coverage and general care-related requirements and flexibilities.  Ensure you stay up-to-date on all guidance relative to public programs by regularly checking compilation on the CMS website.

    Coverage of COVID-19 Testing and Services

    CMS guidance initially limited states’ ability to waive cost sharing for COVID-19 testing and treatment to those states that also suspended co-payments for all services, unless they sought a Section 1115 waiver. However, as part of the broader Families First Coronavirus Response Act (FFCRA), which was signed into law on March 18th, Congress required Medicaid and CHIP programs, Medicare Part B, and Medicare Advantage plans to cover COVID-19 testing without cost sharing.

    Under this act, states also have the option to extend Medicaid eligibility to uninsured populations for the purpose of COVID testing with a 100 percent federal match. Additionally, funding was provided to reimburse providers for the costs of COVID-19 testing and services for the uninsured. Similarly, FFCRA requires coverage for COVID testing within TRICARE, Veteran’s Affairs, Indian Health services and the Defense Health Program.

    However, the original limitations on states’ ability to waive cost sharing specific to COVID-19 treatment still apply. Under Medicaid guidance, states may only waive this if they also suspend co-payments for all services, unless they seek a Section 1115 waiver.

    Telehealth

    FFCRA, the Coronavirus Preparedness and Response Supplemental Appropriations Act (CPRSAA) and CMS guidance also address additional telehealth requirements for Medicaid programs. These provisions aim to ensure that beneficiaries can access services while in quarantine or practicing social distancing.

    The CPRSAA was the first piece of legislation to waive restrictions on the provision of services via telehealth by Medicare providers. That flexibility was clarified via the FFCRA[2] and has since been explained in more detail in CMS guidance. Effective March 6th, CMS will temporarily pay Medicare providers for providing care via telehealth, including that originating in the beneficiary’s home. This is an expansion to the types of telehealth services the program can reimburse; previously, covered telehealth visits were limited to brief check-ins and routine services delivered to rural areas. It also allows care to be provided while the beneficiary is at home (no longer requiring the beneficiary to be at another health care facility).

    Under this new guidance, telehealth services will be covered for a range of health care providers, including doctors, nurse practitioners, clinical psychologists and licensed clinical social workers—as well as for a range of services, including office visits, mental health counseling and preventive health screenings. Services need not be COVID-19-related. Any communication tool allowing real-time, interactive audio and video capabilities may be used, and reimbursement will be provided at the same amount as is paid for in-person services. Cost sharing will apply as normal but can be waived by the provider.

    The HHS Office of Civil Rights (OCR) also announced that it will exercise enforcement discretion and waive HIPAA violations related to telehealth for health care providers using “everyday communications technologies” in good faith. More information about these new opportunities are available in the CMS Fact Sheet and FAQ.

    Similarly, CMS provided guidance to states seeking to reimburse providers using telehealth for service delivery to Medicaid beneficiaries. While State Plan Amendments may be required under certain circumstances, they are not required if payments are made in the same manner as when the service is delivered face-to-face. CMS also notes that payment may include costs associated with the time and resources spent facilitating care, as well as other ancillary costs.

    Other Medicaid Flexibility

    CMS is maintaining a running FAQ outlining the broad range of Medicaid flexibilities available—for example:

    Additionally, CMS has made a disaster preparedness toolkit available to states.

    Other Medicare Waivers

    Similar to the COVID-19-related Section 1135 waivers available to states, CMS also issued blanket waivers of similar Medicare provisions, including:

    CMS also announced additional beneficiary flexibility. In addition to covering and waiving cost sharing for COVID-19 testing and covering services provided by a broader range of providers (as outlined above), Medicare Advantage plans must waive required referrals related to COVID-19 treatments—and may also waive or reduce cost sharing and prior authorization for COVID-19-related services.

    Medicare Part D plans must allow access to out-of-network pharmacies and cover any future COVID-19 vaccine, and may also:

    For more information, see the CMS fact sheet on this topic.

    Federal Support for State Medicaid Programs

    The FFCRA also provides a temporary 6.2 percentage point increase to states’ Federal Medical Assistance Percentage (FMAP) during the pandemic. This additional support comes with a maintenance of effort requirement. This funding increase and related requirements are described in further detail in a CMS FAQ.

     Footnotes

    [2] Further clarification is included in the Coronavirus Aid, Relief, and Economic Security Act (CARES Act, also known as the COVID-19 Stimulus bill), which had passed the Senate and House of Representatives as of the time of publication. That bill also includes funding for states and providers relative to health care.

    Back to top

    Congress and CMS Action Relative to Employers and Private Insurance Coverage and COVID-19

    In addition to seeking to provide greater flexibility relative to public health care programs, CMS and Congress have had their eye on ensuring Americans with private insurance have access to the services they need during the COVID-19 pandemic.

    As of March 25th, CCIIO had published several pieces of guidance detailing flexibilities and expectations for private insurance during the pandemic, covering topics such as co-payments for COVID-19 testing and treatment, service delivery, and enrollment. In addition, Congress has passed several bills aimed at addressing the full range of impacts of the COVID-19 pandemic. Within our coverage below, we focus on the healthcare-related provisions in these pieces of legislation.

    Waiving Co-Payments

    The Families First Coronavirus Response Act (FFCRA), which was signed into law on March 18th, requires private health insurers to provide coverage for COVID-19 testing within group and individual health insurance plans (including grandfathered plans) without cost sharing or prior authorization requirements. A subsequent bill—the Coronavirus Aid, Relief, and Economic Security Act (CARES Act, also known as the COVID-19 Stimulus bill)—which has passed the Senate and the House of Representatives at the time of publication, would expand the scope of that requirement.

    Despite this action, FFCRA falls short of mandating coverage for the treatment of COVID-19. As a result, questions remain about the extent of coverage for emergency services, as well as for typically high-cost services rendered to a consumer in a hospital setting.

    CMS released a general fact sheet regarding existing coverage rules that may apply to COVID-related care, as well as an FAQ outlining insurer flexibility to offer early prescription drug renewal and extended supplies.

    Telehealth

    On March 24th, CMS released an FAQ encouraging private insurers to cover and promote the use of telehealth. CMS noted that it “will not take enforcement action against insurers in the individual and group markets that make a mid-year change to provide greater coverage for, or eliminate cost-sharing requirements for, telehealth services (for COVID-19 or otherwise). Plans cannot, however, make mid-year changes that reduce or eliminate other benefits to offset the cost of providing more generous telehealth benefits.” The pending CARES Act also includes a safe harbor for High-Deductible Health Plans that cover telehealth services prior to the deductible.

    Enrollment Flexibility

    CMS is said to be considering action to create a COVID-related special enrollment period (SEP). While that action remains undetermined, CMS has released guidance on payment and grace period flexibility. CMS will exercise enforcement discretion should carriers choose to waive premium payment requirements, including for individuals receiving Advance Premium Tax Credits (APTC), and encourages state-based Exchanges to do the same.

    Catastrophic Plans and HDHPs

    CCIIO has announced that it will not take action against health insurers that amend catastrophic plans to provide coverage of COVID-related test and treatment services without imposing cost sharing. It is encouraging states to follow its lead. Similarly, the Internal Revenue Service issued guidance allowing High-Deductible Health Plans (HDHPs) to provide coverage for the diagnosis and treatment of COVID without applying cost sharing.

    Paid Family Leave in response to COVID-19

    FFCRA also seeks to support employees and employers, especially those who are ill or assuming caretaking responsibilities—whether for ill family members or children affected by the forced closures of schools and daycares. To accomplish this, FFCRA provides two weeks of paid leave for full-time workers. Part-time workers would get a period of leave equal to the number of hours they work on average over a two-week period.

    This leave only applies to workers at companies with less than 500 employees. Leave payments are capped at $511 a day for sick individuals, or $200 a day for those caring for children or sick family members. Since FFCRA’s passage, small businesses have expressed concerns about the costs of providing the upfront tax funds to ensure employees have Emergency Paid Medical Leave—despite assurance that they will receive a tax credit.

    Other Health-Related Provisions in Recent Legislation

    Back to top

    State-Level Responses to COVID-19

    States have taken action to increase residents’ access to health insurance, as well as clarify for consumers the costs associated with COVID-19 testing and treatment. Many states are urging consumers to utilize telehealth during this period of social distancing and quarantine and avoid hospitals and medical facilities unless absolutely necessary. This large, rapid shift in the way health care is delivered and may eventually serve as an example of telehealth’s benefits. To assist regulators and policymakers seeking to provide stability, expand coverage options, and ensure healthcare access for consumers, we compiled a round-up of some recent state action related to COVID-19 in this section.

    Special Enrollment Periods & Flexibility for Consumers

    While the federal government considers adding a special enrollment period (SEP) related to the COVID-19 pandemic, some states have independently taken this action. On March 11th, the Massachusetts Health Connector announced a 45-day extension of its usual open enrollment period[3] in response to the COVID-19 virus—allowing consumers without coverage to enroll until April 25th. At least eight other states have implemented similar changes to their enrollment periods.

    In addition to expanding its open enrollment period, Massachusetts sought assistance from health insurance carriers to keep people insured during this public health emergency. On March 23rd, the Massachusetts Division of Insurance issued a bulletin, Flexibility in the Issuance and Administration of Insurance during COVID-19 Public Health Crisis, directing carriers to increase flexibility in a number of key areas to combat COVID-19 and ensure consumers can utilize health insurance benefits. These include:

    Expanding the Use of Telehealth

    As of late last week, eighteen states and the District of Columbia had issued guidance expanding telehealth capabilities. Given the current “stay at home” restrictions in place for many enrollees, this guidance waives some in-person requirements for Medicaid enrollees (e.g., states allowing a phone call to qualify as establishing a doctor-patient relationship), as well as the in-office or originating site requirements for telehealth. States can work to ensure continuity of care for consumers during this time of crisis by utilizing telehealth and other technologies, thereby reducing the number of patients using in-person care while allowing consumers access to their providers without risk of COVID-19 exposure.

    On March 19th, Governor DeWine of Ohio issued an executive order allowing for the expanded use of telehealth for Medicaid enrollees to access services remotely. To relieve the current pressure on hospitals and health facilities, the order enables patients to utilize telehealth for routine care—particularly behavioral health services, which it specifically targets.

    On March 10th, Governor Baker of Massachusetts mandated that all commercial health insurance carriers, self-insured plans, and state health plans operating in the state Massachusetts “cover all clinically appropriate telehealth services, and at the same rate as in-person care,” along with a requirement that medically necessary, COVID-19-related telehealth treatments be covered at no cost sharing.

    On March 18th, Governor Sununu of New Hampshire issued an emergency order expanding the use of telehealth. The order requires that all single risk pool health benefit plans and New Hampshire Medicaid coverage (including Medicaid MCO plans) allow in-network providers to deliver clinically-appropriate, medically-necessary covered services to members via telehealth. Additionally, it mandates that reimbursement levels of services rendered via telehealth—including payment to in-network providers for services delivered via telehealth—must not be lower than the established rates of payment for traditionally-delivered services. The New Hampshire Insurance Department followed up the emergency order with a fact sheet to assist consumers in understanding the new regulations (outlining permitted categories of provider visits; providing examples of originating sites, including the patient’s home; detailing accepted and prohibited communication platforms for visits).

    Footnotes

    [3]https://www.mahealthconnector.org/massachusetts-health-connector-offers-extended-enrollment-for-uninsured-individuals-to-ease-coronavirus-fears

    Back to top

    Exit mobile version