Legislative Action Aims to Secure A Comprehensive Public Health Response to Coronavirus (COVID-19)

Current as of March 19, 2020. This post is a work in progress and will be updated with new developments.

By Maria Velasquez, Alexander Somodevilla and Morgan Handley

Introduction

The federal government has recently taken several steps to address the public health crisis resulting from the COVID-19 outbreak. On March 6th, President Trump signed into law the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020, which provides $8.3 billion in emergency funding for federal agencies to respond to the COVID-19 outbreak.[1] This piece of legislation makes $100 million available for health centers to prevent, prepare for, and respond to the COVID-19 national emergency. According to its website, HRSA is working quickly to develop a spending plan and will expedite the awarding of funds.[2]

On March 14th, the U.S. Citizenship and Immigration Services (UCIS) issued an unexpected guidance which encouraged all individuals, including aliens, to seek necessary medical treatment or preventive services related to COVID-19, clarifying that such treatment would not negatively impact future Public Charge determinations.[3] The Supreme Court recently allowed the Public Charge Rule to take effect nationwide as litigation led by states and immigrant advocacy groups challenging the rule develops in the lower courts. Even before the rule came into effect, it led many immigrants to decline seeking necessary care or other government services, fearing it will be counted against them in the future.[4],[5]

Families First Coronavirus Response Act, H.R. 6201 (116)

Also on March 14th, the House of Representatives passed (363-40) a comprehensive coronavirus response package - Families First Coronavirus Response Act - that “guarantees free coronavirus testing, establishes paid leave, enhances Unemployment Insurance, expands food security initiatives, and increases federal Medicaid financing.”[6]  The legislation, supported by President Trump[7] and expected to be taken up by the Senate early this week[8], comes at the heels of a number of domestic and international developments[9],[10] that have caused growing concerns over community spread and economic uncertainties. As other countries continue to grapple with the virus, public health, medical and legal experts have emphasized the need for affordable, accessible testing and treatment, in order to strengthen the health care and public health infrastructure and protect vulnerable populations.[11]  

What is Covered in the Bill?

Health Care and Public Health Provisions

As highlighted in a Health Affairs blog by a working group of public health and medical experts, significant financial investment as well as legislative and executive action are required in order to protect the health of all Americans.[11] The House bill is expansive in that it reaches individuals covered under private insurance, individuals covered under Medicaid and Medicare, and individuals who are uninsured.

The bill would require private health plans to provide coverage for COVID-19 testing, including the provider, emergency room or urgent care center visit associated with such testing, at no cost to the beneficiary. It would similarly require Medicaid to provide coverage for COVID-19 diagnostic testing, as well as the provider visit associated with testing, at no cost to the beneficiary. The bill would also provide states the option to extend Medicaid eligibility to uninsured populations for the purposes of COVID-19 diagnostic testing and provide for a temporary increase to states’ federal medical assistance percentage (FMAP) for the duration of the COVID-19 public health emergency. It also includes $1 billion for the National Disaster Medicaid System to help cover the cost of COVID-19 diagnostic testing and services provided to uninsured individuals.

In addition to the abovementioned private insurance and Medicaid provisions, the bill also would waive cost-sharing for provider visits associated with diagnostic testing under Medicare Part B (Medicare Part B already covers the diagnostic testing itself at no cost), would require Medicare Advantage plans to provide coverage with no cost-sharing for diagnostic testing and provider visits associated with testing and would ensure American Indians and Alaskan Natives experience no cost-sharing for COVID-19 testing, even if referred for care away from an Indian Health Service or tribal health care facility.

Other Provisions

Beyond the health care and public health response, the bill includes several key policy changes and addresses gaps in funding needed to support families and communities. These changes include:

  • Increased financial support for food and nutrition services such as WIC and The Emergency Food Assistance Program (TEFAP);
  • The creation of and funding for an Emergency Paid Sick Days Program, administered by the Department of Labor;
  • Waivers that provide the authority to remove bureaucratic red tape and increases flexibility around essential access to school lunches for students during closures,
  • Suspension of work and work training requirements for SNAP during this public health crisis;
  • Protections for health care workers at the frontline of the infectious disease response;
  • Amendment to the Social Security Act that creates and provides funding for a new federal emergency paid leave benefits program related to the coronavirus;
  • Increased funding in 2020 for emergency grants to states for administrative activities related to processing and paying unemployment insurance benefits; and
  • Emergency paid sick days legislation that requires employers to provide sick days in the event of a public health emergency, including the current crisis

Moving Forward

The bipartisan bill, while a significant first step to addressing mounting economic and public health pressures, still falls short on providing specifics on timing and logistics, along with protections for vulnerable populations such as immigrants and the uninsured. In a  recent piece in The New Yorker, John Cassidy calls for additional governmental action to bolster any stimulus package including a stipend to all Americans to assist them during the economic downturn (in lieu of Trump’s idea to suspend payroll taxes), the use of Medicaid to cover more people, and so on.[12]

With respect to certain provisions included in the bill, some Republican Senators have expressed doubt around the House bill passing without changes, though it was ultimately passed in the latest version containing “technical corrections” without objection.[13] Paid sick leave, for example, has raised concerns and questions among some GOP members that these measures could create pressure on businesses to lay off workers if the refundable tax credit provided to them doesn’t move quickly enough. While Senate Majority Leader Mitch McConnell has spoken to the chairs of several committees to begin taking up legislation that will effectively supplement aid to small businesses and ongoing efforts to support the health care system, it remains to be seen what the final package will entail as the crises continues with more than 5,300 COVID-19 confirmed cases in the United States.[14] Meanwhile, The White House and Senate Republicans are considering combining the House-passed coronavirus aid bill with President Trump’s $850 million stimulus bill to create one aid package, becoming possibly the largest rescue aid in modern American history.[15],[16]

CMS Guidance

In the meantime, CMS has released guidance to state Medicaid and CHIP agencies regarding the resources available to assist states in responding to COVID-19, including the use of certain flexibilities and waivers.[17] While previously used for public health emergency related to earthquakes (Puerto Rico), hurricanes (North Carolina, Florida) and other disasters, Florida is the first state to pursue and be approved for a Section 1135 Waiver in response to COVID-19 [18], with California's request currently pending with CMS. [19] Section 1135 Waivers provide states flexibility to temporarily waive or modify certain Medicare, Medicaid, and CHIP requirements to make available sufficient health care items and services to meet the needs of individuals enrolled in Social Security Act programs during an emergency. Examples of requirements that may be waived or modified include conditions of participation or other certification requirements, preapproval requirements, physician and other health care professional licensing in the State in which they are providing services, etc.[20] Florida’s waiver, approved March 16th, allows the state to reimburse providers not enrolled in Florida’s Medicaid program for the duration of the emergency (with caveats), waive service prior authorization requirements, waive pre-admission screening and annual resident review (PASRR) Level 1 and Level 2 assessments for 30 days, allow evacuating facilities to provide services in alternative settings (i.e. temporary shelters) when a provider’s facility is inaccessible, and modify timeframes associated with appeals and fair hearings.[21] Other states may soon follow suit and submit similar waivers, which CMS anticipates expeditious review and approval of Section 1135 waivers as appropriate.[22],[23]

Updates

  • March 17, 2020, 2:12 pm: (More details released on technical corrections bill) The latest bill includes changes to the federal paid sick leave and family medical leave policy for affected workers. The initial bill allowed for up to 10 weeks of paid leave for three different scenarios (if they become sick or are forced to be quarantined, if they are caring for a sick person or if they are caring for a child whose school or daycare has been closed). The updated bill, however, scales back on the categories eligible for extended family and medical leave to only individuals who are taking care of children. [24]
  • March 17, 2020, 2:20 pm: Senate Minority Leader Chuck Schumer released more details on his $750 billion plan to surge the federal response to the coronavirus and ease the economic impact. The proposal includes $400 billion in emergency appropriations, in addition to $350 billion in benefit increases and changes to federal safety net programs including Medicaid and SNAP.[25]
  • March 17, 2020, 5:36 pm: Three Republican task forces are putting together a Senate GOP version, "Phase 3," of the coronavirus package, with many Republicans expressing interest in providing Americans with as many as two $1,000 checks directly in response to the economic downturn. House Speaker Nancy Pelosi has expressed willingness to combine stimulus proposals put forth by Democrats and the administration.[26]
  • March 18, 2020, 10:30 am: In a letter from Acting OMB Director Russ Vought to Vice President Mike Pence, the agency is seeking nearly $46 billion for multiple agencies involved in the COVID-19 response. The request includes additional FY 2020 funding for the Department of Defense ($8.3 billion), the Health Resources and Services Administration (HRSA) ($1.336 billion), the Centers for Disease Control and Prevention (CDC) ($3.415 billion), the Assistant Secretary for Preparedness and Response (ASPR), Public Health and Social Services Emergency Fund ($5.277 billion), the Federal Emergency Management Agency (FEMA), Disaster Relief Fund ($2 billion), the Department of Veterans Affairs, Veterans Health Administration, Medical Services ($13.1 billion), Medical Community Care ($2.1 billion), the Department Administration, Information Technology Systems ($1.2 billion), and the Office of the President, Office of Management and Budget (OMB) ($3 billion).[27]
  • March 18, 2020, 4:00 pm: Senate approves (90-8) the House-passed multibillion-dollar emergency aid package and now heads to the President for signing.[28]
  • March 18, 2020, 8:30 pm: President Trump signs the Families First Coronavirus Response Act into law.
  • March 19, 2020, 7:30 pm: Senate Republicans introduce the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) that provides assistance to small businesses, cash assistance to individuals, aid to impacted industries like airlines and additional support to the health care system. Health provisions included in the bill include a temporary freeze on the sequester's 2 percent cut to Medicare payments (and separately could get a 15 percent Medicare rate bump for COVID-19 patients); $1.32 billion for community health centers; the ability for labs and hospitals to quickly develop a test for the coronavirus under a public health emergency; COVID-19 vaccine coverage and other preventative measures; priority FDA review for manufacturers of medicines critical during physical health emergencies; changes to patient privacy for substance disorders records to allow for broad authorization to share records; and flexibility for telehealth coverage in Medicare and patients with high-deductible health plans with HSAs.[29]

[1] https://www.congress.gov/bill/116th-congress/house-bill/6074/text

[2] https://bphc.hrsa.gov/emergency-response/coronavirus-frequently-asked-questions.html

[3] https://www.uscis.gov/greencard/public-charge

[4] https://www.healthaffairs.org/do/10.1377/hblog20191008.70483/full/

[5] https://subscriber.politicopro.com/article/2020/03/trumps-immigration-crackdown-could-hurt-coronavirus-containment-efforts-1888814

[6] https://subscriber.politicopro.com/f/Summary_of_H.R._6201_(116),_Fa.pdf?&id=00000170-d739-da87-af78-f7bd043a0000

[7] https://twitter.com/realdonaldtrump/status/1238626501555298308

[8] https://www.politico.com/news/2020/03/16/senate-coronavirus-emergency-package-131465

[9] https://www.nytimes.com/2020/03/15/world/coronavirus-live.html?auth=login-email&login=email

[10] https://www.nytimes.com/interactive/2020/world/coronavirus-maps.html?action=click&pgtype=Article&state=default&module=styln-coronavirus&variant=show&region=TOP_BANNER&context=storyline_menu

[11] Forman, H.P. (2020). Health Care Priorities For A COVID-19 Stimulus Bill: Recommendations To The Administration, Congress, and Other Federal, State And Local Leaders From Public Health, Medical, Policy and Legal Experts. Health Affairs Blog. Available at https://www.healthaffairs.org/do/10.1377/hblog20200312.363618/full/.

[12] https://www.newyorker.com/news/our-columnists/what-would-a-proper-coronavirus-stimulus-plan-look-like

[13] https://www.congress.gov/bill/116th-congress/house-resolution/904/text

[14] https://www.politico.com/news/2020/03/16/senate-coronavirus-emergency-package-131465

[15] https://www.politico.com/news/2020/03/17/white-house-senate-republicans-coronavirus-aid-133732

[16] https://subscriber.politicopro.com/article/2020/03/17/emergency-stimulus-to-soar-above-1t-1267415

[17] https://www.medicaid.gov/state-resource-center/downloads/covd-19-faqs-20200312.pdf

[18] https://www.medicaid.gov/state-resource-center/disaster-response-toolkit/federal-disaster-resources/?entry=53995

[19] https://www.dhcs.ca.gov/Documents/COVID-19/CA-1135-Waiver-COVID-19-031620.pdf

[20] https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertEmergPrep/Downloads/1135-Waivers-At-A-Glance.pdf

[21] https://www.medicaid.gov/state-resource-center/downloads/fl-section-1135-appvl.pdf

[22] https://www.cms.gov/newsroom/press-releases/cms-approves-first-state-request-1135-medicaid-waiver-florida

[23] https://www.medicaid.gov/state-resource-center/disaster-response-toolkit/federal-disaster-resources/index.html

[24] https://www.politico.com/news/2020/03/17/sick-leave-coronavirus-package-congress-134101

[25] https://subscriber.politicopro.com/article/2020/03/17/schumers-750b-stimulus-plan-includes-400b-in-new-emergency-spending-1267447

[26] https://www.politico.com/news/2020/03/17/white-house-senate-republicans-coronavirus-aid-133732

[27] https://www.whitehouse.gov/wp-content/uploads/2020/03/Letter-regarding-additional-funding-to-support-the-United-States-response-to-COVID-19-3.17.2020.pdf

[28] https://www.npr.org/2020/03/18/817737690/senate-passes-coronavirus-emergency-aid-sending-plan-to-president

[29] https://www.republicanleader.senate.gov/imo/media/doc/CARES%20Act%20Final%20-%20Mar%202020.pdf

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