COVID-19: Legislative and Regulatory Update

  

The American Nurses Association’s Policy and Government Affairs Department is committed to providing nurses with the most comprehensive and up-to-date information regarding the current legislative and regulatory developments related to addressing the Coronavirus Disease 2019 (COVID-19) global pandemic. This information is current as of Wednesday, March 18, 2020.

Topline Summary

  • On Wednesday, March 18, President Trump announced he would invoke the Defense Production Act (DPA) in response to the coronavirus pandemic, which gives the federal government broad powers to enlist private companies to help with national crises. The President mentioned masks, respirators and ventilators amongst the supplies for which DPA will be used to accelerate development.
  • On Friday, March 13, the administration declared a national emergency and the CDC published guidance to limit gatherings to 10 or fewer people and to avoid public places like bars and restaurants; several cities have implemented shelter in place orders.
  • The Centers for Medicare & Medicaid Services issued guidance to expand Medicare telehealth services for beneficiaries through providers including NPs and CRNAs; Medicaid approved the first emergency Medicaid waiver (Florida) to simplify access and coverage.
  • The U.S. House of Representatives passed the second piece of supplemental legislation on Saturday, March 14; the U.S. Senate passed the second supplemental measure on Wednesday, March 18. The House and Senate are now negotiating the third supplemental package and ANA continues to monitor developments and engage with stakeholders.

General Update

On Friday, March 13, President Trump declared a national emergency under the Stafford Act in response to the ongoing COVID-19 pandemic. As of this writing, the United States has reported a total of 7,047 confirmed cases of COVID-19 and 121 total deaths (a mortality rate of 1.72 percent among reported cases).

The latest guidance from the administration is to limit any gatherings to 10 or fewer people, and to avoid going out to public places like restaurants and bars.

  • As of March 16, 2020, 29 states have closed schools for at least two weeks.
  • Many other states have closed restaurants, bars, gyms, and other social gathering places.
  • San Francisco and the greater Bay Area has issued a shelter in place which restricts movement outside the home to only essential needs including the grocery store, pharmacy, and police.

Below are some of the legislative and regulatory actions that the administration and Congress have taken to respond to the COVID-19 pandemic:

Legislative

On Saturday, March 14, the U.S. House of Representatives passed H.R. 6201, the second supplemental legislation to address the impacts of the COVID-19 pandemic; the Senate passed this legislation on Wednesday, March 18. The House and Senate are currently negotiating a third supplemental economic relief measure. ANA is monitoring the negotiations and continuing its outreach on Capitol Hill.

H.R. 6201 (passed by both the House and Senate) seeks to:

  • Expand paid leave, food assistance and unemployment insurance and deliver additional Medicaid funding. The measure would provide tax credits to employers to offset the costs of providing emergency sick leave. It also would require insurers, Medicare, Medicaid, and other federal health programs to fully cover testing without prior authorization and related services for the virus.
  • Provide emergency funding for several nutrition programs, including the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), as well as various federal health programs. The funds provided under the measure would be designated as emergency requirements and wouldn’t count against the discretionary spending cap for FY 2020.
  • Make personal respiratory protective devices a covered countermeasure under the Public Readiness and Emergency Preparedness Act (Public Law 109-148). The law allows HHS to provide liability protections for certain emergency response products.

Additionally, earlier in March, Congress passed, and the President signed into law, the first supplemental legislation to address COVID-19. Included in that legislation is $3 billion to the development of treatments and coronavirus vaccine and $300 million to ensure individuals will have access to the vaccine regardless of their ability to pay.

To protect public health, the legislation allows Medicare providers to extend telemedicine services to beneficiaries regardless of where they live. The use of telehealth technologies to provide care can help reduce exposures and preserve personal protective equipment (PPE) and other facility resources during this emergency.

Regulatory

Through the president’s declaration of a national emergency, the U.S. Centers for Medicare & Medicaid Services (CMS) has issued guidance and taken actions to ensure that Medicare and Medicaid beneficiaries – which cover some of the nation’s most vulnerable populations – are able to receive care the care that they need in the safest manner possible.

The administration yesterday also announced expanded Medicare telehealth coverage through Section 1135 waiver authority that will enable beneficiaries to receive a wider range of healthcare services from their clinician without having to travel to a healthcare facility. A range of healthcare providers, such as doctors, nurse practitioners, clinical psychologists, and licensed clinical social workers, will be able to offer telehealth to Medicare beneficiaries. Beneficiaries will be able to receive telehealth services in any healthcare facility including a clinician’s office, hospital, nursing home or rural health clinic, as well as from their homes.

Beginning on March 6, 2020, Medicare will temporarily pay clinicians to provide telehealth services for beneficiaries residing across the entire country. Prior to this announcement, Medicare was only allowed to pay clinicians for telehealth services such as routine visits in certain circumstances. For example, the beneficiary receiving the services must live in a rural area and travel to a local medical facility to get telehealth services from a doctor in a remote location. In addition, the beneficiary would generally not be allowed to receive telehealth services in their home.

The president’s national emergency declaration also allows CMS to approve Section 1135 waivers for state Medicaid programs. These waivers provide state and territorial Medicaid agencies a wider range of flexibilities to remove administrative burdens and expand access to needed services. CMS yesterday approved the first 1135 Medicaid waiver request (submitted by and approved for the State of Florida).

ANA Activity and Next Steps

ANA has prioritized the national response to the COVID-19 pandemic and is devoting significant resources to address it. ANA continues to work with other healthcare stakeholders, provider groups, the administration, and Congress, to ensure that the nation’s registered nurses and other healthcare providers on the front lines have access to adequate personal protective equipment (PPE) that meets OSHA safety standards. ANA also continues to work with these partners to ensure that the U.S. healthcare system maintains the capacity to treat anyone experiencing serious, severe, or extreme symptoms of COVID-19, particularly those in at-risk populations.

Medicaid Healthy Adult Opportunity – or Block Grants by Another Name

  

On Thursday, January 30, Department of Health and Human Services (HHS) Secretary Alex Azar and Centers for Medicare & Medicaid Services (CMS) Administrator Seema Verma, introduced the Healthy Adult Opportunity (HAO) proposal, which would allow states the flexibility to essentially create block grant programs for certain adult Medicaid beneficiaries, primarily the Medicaid expansion population, through the Medicaid 1115 demonstration waiver process.

Initial HAO demonstration models would initially last for five years and would be financed annually either through a per capita model or a total expenses model. Per capita and total expenses models’ funding levels would be calculated together by CMS and a respective state by using a trendline based on historical expenditures and within the bounds of the projected rate of medical spending inflation. The administration has touted the HAO proposal as a way to provide states with greater flexibility to operate their Medicaid programs while reining in state and federal Medicaid spending. However, health policy experts have expressed concerns over how this proposal might impact beneficiary eligibility and coverage levels.

HAO demonstration models could include adults eligible for Medicaid through Medicaid expansion (individuals with income up to 138% of the Federal Poverty Level) and other adults under age 65 who are eligible for Medicaid on the basis of something other than a disability – including low-income parents and pregnant women covered under state options and other populations covered under other 1115 demonstration models. States that implement a HAO model would be required to apply certain beneficiary protections for individuals with HIV and those with behavioral health conditions (including opioid use disorders), particularly when it comes to the availability of drugs used to treat or prevent these conditions.

States implementing a HAO model could also include conditions on eligibility. Such conditions include work requirements (or community engagement requirements) and premium and co-payment requirements (not to exceed 5 percent of annual household income). States could also eliminate retroactive coverage or hospital presumptive eligibility provisions for beneficiaries covered under the HAO model. While states could technically set an income limit and asset tests under a HAO model for beneficiaries currently covered under Medicaid expansion, these would forfeit the ability to receive the enhanced federal matching for this population (permanently set at 90%).

The CMS proposal also requires states to report a suite of 25 quality metrics (taken from the CMS Adult Core Set) to CMS, including flu vaccinations, screening for depression and follow-up care, controlling for high blood pressure, and comprehensive diabetes care. States would also be required to report quarterly to CMS on a set of metrics related to enrollment, retention, and access to care, including the number of providers actively enrolled and seeing patients, retention of beneficiaries at renewal, and complaints regarding difficulty in accessing timely services. Requiring states to report these metrics would allow CMS to address concerns over access to care in a timely manner.

It is currently unclear what impacts the HAO proposal will have on Medicaid coverage. Past experiences in other block grant programs and implemented work requirements, however, do not indicate positive results. Since the Temporary Assistance for Needy Families (TANF) program was converted to a block grant in the 1990s, Congress has held funding flat, despite inflation and growing need, which has resulted in reduced benefits and fewer beneficiaries without necessarily transitioning beneficiaries out of poverty. Furthermore, Arkansas’ implementation of controversial Medicaid work requirements resulted in 18,000 beneficiaries losing Medicaid coverage in the last six months of 2018. On the other hand, the HAO proposal could entice some states that have not already done so to provide coverage to the Medicaid expansion population, while it is unlikely that many (if any) of the states that have already implemented Medicaid expansion would opt-in to a HAO model.

Financial sustainability is critical in a program as large as Medicaid; however, it is equally critical that that sustainability does not come at the expense of beneficiary access to care. ANA’s principles for health system transformation state that the U.S. health system must ensure universal access to a standard package of essential health care services for all citizens and residents, and registered nurses stand at the front line of that care.

While ANA supports the protections included in this proposal for individuals with HIV and behavioral health conditions, it is essential that CMS and the states ensure that no citizen or resident loses access to comprehensive healthcare services. In states where Medicaid leaders pursue HAO waivers, nurse advocates have an opportunity to engage in stakeholder and official comment processes. Policymakers should consider nurses’ perspectives on specific proposals and program designs for a given state. Key areas to address include access choice of provider, healthcare workforce issues, and accountability for healthcare quality.

CMS Recognizes RNs’ Role Beyond the Bedside

  

On September 30, 2019, the Centers for Medicare & Medicaid Services (CMS) published the Omnibus Burden Reduction Final Rule. This rule aims to reduce unnecessary burdens for America’s health care providers by allowing them to focus on their patients. It does so by removing Medicare regulations identified as unnecessary, obsolete, or excessively burdensome on hospitals and other health care providers.

In the Final Rule, CMS finalizes a proposal to revise the Medicare Conditions of Participation (CoPs) for nursing services. It will remove the term “bedside” from the requirement that states, “there must be supervisory and staff personnel for each department or nursing unit to ensure, when needed, the immediate availability of a registered nurse for bedside care of any patient.” ANA applauds CMS’ recognition that RNs’ scope of practice extends far beyond bedside care in the inpatient setting and that RNs perform a wide range of duties within their scope of practice. ANA also applauds CMS’ recognition that RNs care for patients in many settings, including inpatient, outpatient, and ambulatory care settings.

One such area in which RNs play a crucial role is care coordination and transitions of care. ANA has long advocated for policymakers and other health care stakeholders to recognize and expand the role of RNs in this role. ANA’s official position statement on care coordination states that, “Patient-centered care coordination is a core professional standard and competency for all registered nursing practice. Based on a partnership guided by the health care consumer’s and family’s needs and preferences, the registered nurse is integral to patient care quality, satisfaction, and the effective and efficient use of health care resources. Registered nurses are qualified and educated for the role of care coordination, especially with high risk and vulnerable populations.”

While CMS’ recognizes that RNs practice in a far wider array of settings than just direct care nursing, CMS and Congress still have a long way to go to integrate RNs within their full scope of practice. Some of the ways ANA will continue to advocate for these changes include:

  • Inserting provider neutral language and correct valuation of RN care through the Current Procedural Terminology (CPT) and Relative-Value Scale Update Committee (RUC) processes;
  • Advocating for APRNs to certify Home Health and Hospice services; and
  • Securing adequate nursing education funding to ensure a robust future nursing workforce.

ANA will continue to vigorously promote RNs’ essential role in all health care settings – not just direct care – and to advocate for RNs at all levels to be able to practice to the full scope of their education and clinical training.