Continued Federal Responses to the COVID-19 Pandemic

With the country in the throes of yet another surge in the COVID-19 pandemic, states and federal agencies continue to respond to its impacts. As our team has since the pandemic began, this post summarizes the latest updates from the federal pandemic response, including new guidance and regulations; new resources for states, providers, and insurers; and new state waivers. As always, with information and policy evolving regularly, we encourage readers to stay on top of the latest updates on these topics and others, including clinical guidance, at

At the beginning of October, as he has done twice since the start of the pandemic, Secretary Azar of the Department of Health and Human Services (HHS) renewed the declaration of a federal public health emergency. This declaration is important to ensure the ongoing applicability of the temporary flexibilities that HHS has granted to states and providers—both nationwide and within state-specific Section 1135 Waivers.


In mid-October, Centers for Medicare and Medicaid Services (CMS) released a list of 11 telehealth services that are newly eligible for Medicare fee-for-service coverage during the public health emergency—bringing the total number of covered telehealth services up to 144.

At the end of October, HHS together with the Departments of Treasury and Labor released an interim final rule that, in part, seeks to ensure access to COVID-19 vaccines. As provided for under the Coronavirus Aid, Relief and Economic Security Act (CARES Act), the rule requires Medicare Part B and non-grandfathered commercial health insurance plans to cover the vaccine without cost sharing. The rule also implements the requirements under the Families First Coronavirus Response Act (FFCRA) that state Medicaid programs must cover the COVID-19 vaccine for enrollees—other than those receiving limited benefit coverage—without cost sharing in order to continue receiving the temporary 6.2 percentage point increase in the Federal Medical Assistance Percentage (FMAP).

The rule also:

  • Clarifies that states must maintain the Medicaid enrollment of “validly enrolled beneficiaries” during the public health emergency in order to continue receiving the temporary FMAP increase
  • Establishes enhanced Medicare payments for new COVID-19 treatments
  • Reflects the CARES Act requirement that COVID-19 test providers make public the price of the tests (and includes an enforcement mechanism for this requirement)
  • Allows the Secretaries of HHS and the Treasury to—under certain circumstances—provide state-specific modifications to the public notice requirements and post-award public participation requirements for Section 1332 Waivers during the public health emergency.

Interested parties have 60 days to comment on the rule.

Resources for States, Providers and Insurers

Preliminary data regarding Medicaid and CHIP telehealth utilization during the pandemic, released in October, shows that telehealth use increased more than 2,600 percent between March and June of 2020 compared to the same months in 2019. Around the same time, CMS released several toolkits related to the COVID-19 vaccine for states, providers, and health insurers and Medicare Advantage Plans to help the healthcare system prepare to administer a future vaccine.

CMS also released a supplement to its Medicaid and CHIP Telehealth Toolkit for state Medicaid and CHIP agencies. The supplement includes lessons learned from other states, such as communications strategies, guidance for identifying services that are appropriate for telehealth, and other telehealth implementation tools. The supplement also contains updated FAQs and resources for states as they begin planning how to proceed when the temporary public health emergency flexibility ends.

Provider Funding

At the beginning of October, the Health Resources and Services Administration (HRSA) in HHS announced Phase 3 of the General Distribution of Provider Relief Funds. Healthcare providers already receiving Provider Relief Funds were eligible to apply for a total of $20 billion of new funding, intended to help make up for financial losses and changes in operating expenses caused by the pandemic. This opportunity is also available to previously ineligible providers, including those who began practicing in 2020. An expanded group of behavioral health providers are also eligible. The application period for the funding closed on November 6th.


While the rate of new COVID-19-related waiver application submissions has slowed, waivers continue to be granted. Massachusetts, Minnesota, Montana, New York and Pennsylvania were all recently granted new Section 1135 Waivers—many of which mirror those previously granted to other states. Additionally, New York and Pennsylvania were both granted waivers to allow inpatient psychiatric services to be provided to an individual under age 21 without the direction of a physician during the public health emergency. Pennsylvania was also granted a waiver to allow clinic services to be provided without the direction of a physician or dentist during the public health emergency.

Additionally, since September, fifteen states have been newly granted Appendix K Section 1915(c) Waiver Amendments. There have been no new Section 1115 Waivers granted since that time.

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