The Federal Administration Continues to Release Guidance and Waivers in Response to the COVID-19 Pandemic

Health Policy News continues tracking federal-level action aimed at addressing the broad impact of the COVID-19 pandemic with a focus on actions to support states and providers in their efforts to respond to the pandemic and its impact. As in our March and April articles, this post aggregates the latest updates from the federal level, focusing on funding to support healthcare providers and flexibility given to providers and states—as well as to commercial health plans, plan sponsors and enrollees—via policy changes and waivers. The context for the federal response to the pandemic continues to evolve on an ongoing basis.

We urge readers to find the latest updates—and guidance specific to testing capacity; vaccine and treatment development; and safely treating COVID-19 and addressing other health care needs—at

Federal Funding

Our April article included information about the additional funding added to the Provider Relief Fund under the Paycheck Protection Program and Health Care Enhancement Act (PPPHCEA). Of the funding available, $50 billion has been allocated for general distribution to Medicare providers and facilities that were impacted by COVID-19 based on net revenue. $30 billion was distributed immediately based on the providers’ proportionate share of Medicare fee-for-service reimbursements in 2019. The remaining $20 billion is being distributed based on the providers’ share of net patient revenue as evidenced by submitted financial data. Eligible providers who received payments by April 24, 2020 have 90 days to accept Terms and Conditions and are also now eligible to receive additional payments.

Other funding is being made available for:

A list of providers who have received funding is available on the Centers for Disease Control and Prevention website.

This month, several federal agencies announced that they are making additional funding available to support care being provided by the nation’s healthcare providers.

Guidance related to Providers and Public Programs


CMS has released additional waivers for hospitals, certain other institutional providers, and ground ambulance providers, aimed at making it easier for them to address the increased demand for healthcare services related to the COVID-19 pandemic. The waivers are applicable through the end of the public health emergency.

The following blanket waivers are applicable to hospitals:

  • Expansion of hospitals’ ability to offer services via swing beds to patients who require a long-term care level of care, as long as the hospitals meet certain requirements
  • Waiver of certain requirements for hospitals that were classified as Sole Community Hospitals prior to the public health emergency—including distance, market share, and bed requirements—to enable the hospitals to increase capacity and properly cohort patients
  • For hospitals that were classified as Medicare-Dependent, Small Rural Hospitals prior to the public health emergency, waiver of the requirements that the hospital has 100 or fewer beds and that at least 60 percent of the hospital’s inpatient days or discharges be attributable to individuals entitled to Medicare Part A benefits, in order to allow the hospitals to increase capacity and properly cohort patients
  • Modification of existing physical environment waivers to allow increased flexibilities for surge capacity and patient quarantine at hospitals, psychiatric hospitals, and Critical Access Hospitals—including use of different space and non-facility space for patient care or quarantine with approval

CMS has also updated life safety code requirements for hospitals, as well as hospice and long-term care facilities, and modified data collection and reporting periods for ground ambulance organizations.

CMS is keeping a comprehensive list of all waivers granted to providers since the declaration of the public health emergency.

Medicare, Medicaid and CHIP

CMS has also released additional information for states regarding Medicaid and Children’s Health Insurance Programs (CHIP). New COVID-19 FAQs cover a range of topics, including:

  • Flexibility related to State Plan Amendment (SPA) public notice requirements;
  • Effective periods for newly-granted Medicaid authorities under waivers;
  • Emergency preparedness and response;
  • Benefits, including those related to laboratory testing, the Alternative Benefit Plan, dental coverage, Money Follows the Person Demonstration Programs, home- and community-based services, and cost-sharing;
  • Financing flexibilities, including related to the Upper Payment Limit, State Plans, and Managed Care Programs;
  • Eligibility and enrollment flexibilities relative to the Basic Health Plan, presumptive eligibility, eligibility verification, application procedures, eligibility requirements, notice requirements, coverage continuation under CARES, and coverage for American Indians and Alaska Natives;
  • Information technology, including technology related to claims processing, T-MSIS and telework; and
  • Data reporting.

CMS has integrated the updates into its comprehensive FAQ document.

CMS also released a fact sheet for local and state governments and hospitals that are setting up alternate care sites in an effort to expand capacity. The guidance provides information regarding seeking payment through public programs for care furnished at the sites, including by partnering with a hospital or health system that is already an enrolled provider, enrolling as a new provider, or seeking payments for professional services only without enrolling as a facility.

Medicaid Managed Care

CMS also released guidance specific to Medicaid Managed Care in a Center for Medicaid and CHIP Services Informational Bulletin. The bulletin provides states with guidance on how to temporarily modify Medicaid Managed Care contracts to address the impacts of the COVID-19 pandemic, with a focus on impacts in utilization. It also addresses temporary flexibilities that CMS is granting states, which allow them to adjust provider payment methodologies and capitation rates while preserving systems of care and access to services. These flexibilities include:

  • Adjusting managed care capitation rates to reflect temporary increases in Medicaid fee-for-service (FFS) provider payment rates when an approved state-directed payment requires Medicaid managed care plans to pay FFS rates;
  • Requiring managed care plans to make allowable retainer payments to certain habilitation and personal care providers; and
  • Requiring managed care plans to temporarily enhance provider payments via state-directed payments.

CMS also notes in the bulletin that it will consider state requests to retroactively amend or implement risk mitigation strategies for the purposes of responding to the COVID-19 pandemic. These strategies could include a two-sided risk corridor on medical costs.

Prior to instituting any changes, states must submit their proposed changes to CMS. The bulletin includes example state proposals for states to reference—and states in need of technical assistance can contact the CMS Director of the Division of Managed Care Policy.

Medicaid Waivers

CMS continues to approve state waiver and SPA requests related to the COVID-19 pandemic. While Washington remains the only state with an approved COVID-19-related Section 1115 Medicaid Waiver, a number of states have been issued new Section 1135 Waiver authority.

As a reminder, Section 1135 Waivers temporarily allow certain federal provisions relative to Medicare, Medicaid, and CHIP to be waived during national emergencies. These can include provisions relative to provider participation, certain coverage requirements, appeals requirements, Emergency Medical Treatment and Labor Act (EMTALA) requirements, provider self-referral restrictions, performance timelines, and provider payment. As of May 28th, 26 states and Washington DC[4] had been granted new waiver authority over the last month under second (and, in some cases, third and fourth) Section 1135 Waiver requests, or updated responses to their initial requests.

In addition to allowing the same types of flexibilities granted through prior waiver approvals, many of the most recent authorities granted relate to home and community- based services waivers and programs—including those related to:

  • Provision of care in alternative locations;
  • Care providers eligible for reimbursement;
  • Relaxed requirements for written consent; and
  • Modified deadlines for evaluations, determinations and annual redeterminations of eligibility, assessments of need, and level of care determinations.

As of May 28th, CMS had also issued 68 Medicaid SPAs to state and territories. Topics commonly addressed by the COVID-19-related SPAs include:

  • Increased provider and facility payments, including supplemental payments, payments for nursing facilities and hospitals, and payments for transportation;
  • Telehealth and home health services;
  • Presumptive eligibility, and streamlined enrollment;
  • Suspension of premiums and co-payments;
  • Expanded benefits and increased access to prescription drugs and case management; and
  • Suspension of certain provider requirements.

Additional CHIP SPAs and Section 1915(c) Waiver Amendments have also been granted to states by CMS.

In its recent FAQ (outlined above), CMS provided a timeline for the new waiver authorities granted. We have included the timeline below for reference:


Guidance related to Private Insurance

As noted in our recent article regarding the final Marketplace guidance for Plan Year 2021, the Center for Consumer Information and Insurance Oversight (CCIIO) adjusted its Qualified Health Plan filing and certification timeline for Plan Year 2021 to give carriers additional time to finalize rates and plans in light of the COVID-19 pandemic. In its guidance, CCIIO also urged carriers to increase the use of telehealth services, and outlined flexibilities related to reporting and accreditation. More detailed information about the guidance can be found in the dedicated article.

The Department of Labor (DOL), the Treasury Department (Treasury) and the Internal Revenue Service (IRS) also issued guidance relaxing enforcement of certain timeframes related to group market requirements. This guidance is intended to provide plan participants, beneficiaries, and employers additional time to make coverage- and benefits-related decisions and to send required notices. This flexibility is available for the duration of the public health emergency.

The DOL, Treasury and IRS issued a Joint Federal Register Notice aimed at group health plans subject to the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code. This notice provides plan participants and beneficiaries with additional time to comply with certain deadlines affecting:

  • COBRA continuation coverage
  • Special enrollment periods
  • Claims for benefits
  • Appeals of denied claims
  • External review of certain claims
  • Plan loans and distributions in certain circumstances
  • Participant payments and withholdings
  • Certain plan filings

The guidance applies to employee benefit plans, employers, labor organizations, and other plan sponsors, plan fiduciaries, participants and beneficiaries, and service providers, effective March 1, 2020 and through 60 days after the end of the national emergency.

A Disaster Relief Notice issued by the DOL Employee Benefits Security Administration (EBSA), extends the deadlines for notices, disclosures and other documents required under ERISA.

The Department of Health and Human Services will adopt similar enforcement flexibility applicable to non-Federal governmental group health plans and group health plans, including Small Business Health Options (SHOP) plans—as well as their participants and beneficiaries—and has encouraged states and issuers to provide similar relief.


[1] Recipients: the American Academy of Pediatrics; the Association of Maternal and Child Health Programs; Family Voices, Inc.; and the University of North Carolina.

[2] Recipients: the Association of State and Provincial Psychology Boards and the Federation of State Medical Boards of the United States, Inc.

[3] The five workforce programs are: the Geriatrics Workforce Enhancement Program; the Area Health Education Centers Program; the Centers of Excellence Program; the Nurse Education, Practice, Quality and Retention – Veteran Nurses in Primary Care Training Program; and the Nurse Education, Practice, Quality and Retention – Registered Nurses in Primary Care Training Program.

[4] As of May 28th, new Section 1135 Waiver authority had been granted to: Alabama, Alaska, Arizona, Arkansas, California, Connecticut, the District of Columbia, Georgia, Indiana, Iowa, Louisiana, Maryland, Massachusetts, Maine, Minnesota, Missouri, Nebraska, New Hampshire, New York, North Dakota, Ohio, Oregon, Rhode Island, Texas, Vermont, Virginia, and Washington.

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