by James C. Sherlock

I was asked yesterday by Christian Braunlich, president of the Thomas Jefferson Institute for Public Policy in Alexandria, to prepare a list of recommended state actions to cope with the emergency. I produced the attached list. The recommendations are offered here as requested with no attempt to prioritize. No attempt has been made to keep up with rapidly changing federal and state actions that may affect this list. I hope it may help.

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Subject: COVID-19 Emergency Actions for Consideration by Virginia’s Governor, Attorney General, Insurance Commissioner and General Assembly^[1]

A. Health-care and health insurance-related recommendations

1. Department of Medical Assistance Services (DMAS) request from CMS Section 1135 waivers as appropriate.

“When the President declares a disaster or emergency under the Stafford Act or National Emergencies Act and the HHS Secretary declares a public health emergency under Section 319 of the Public Health Service Act, the Secretary is authorized to take certain actions in addition to her regular authorities. For example, under section 1135 of the Social Security Act, she may temporarily waive or modify certain Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) requirements to ensure that sufficient health care items and services are available to meet the needs of individuals enrolled in Social Security Act programs in the emergency area and time periods and that providers who provide such services in good faith can be reimbursed and exempted from sanctions (absent any determination of fraud or abuse).

Examples of these 1135 waivers or modifications include:

• Conditions of participation or other certification requirements
• Program participation and similar requirements
• Pre-approval requirements
• Requirements that physicians and other health care professionals be licensed in the State in which they are providing services, so long as they have equivalent licensing in another State (this waiver is for purposes of Medicare, Medicaid, and CHIP reimbursement only – state law governs whether a non-Federal provider is authorized to provide services in the state without state licensure)
• Emergency Medical Treatment and Labor Act (EMTALA)
• Stark self-referral sanctions
• Performance deadlines and timetables may be adjusted (but not waived).
• Limitations on payment for health care items and services furnished to Medicare Advantage enrollees by non-network providers

These waivers under section 1135 of the Social Security Act typically end no later than the termination of the emergency period, or 60 days from the date the waiver or modification is first published unless the Secretary of HHS extends the waiver by notice for additional periods of up to 60 days, up to the end of the emergency period.

Additionally, the Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers regulation applicable to all 17 provider types, also requires inpatient providers to have policies and procedures that address the facility’s role under an ‘‘1135 waiver’’. See the final rule for more information or contact your Regional Offices.”^[2]

2. DMAS Consider Implementing Pre-approved Self-directed Medicaid Services.

A self-directed service “means that participants, or their representatives if applicable, have decision-making authority over certain services and take direct responsibility to manage their services with the assistance of a system of available supports. The self-directed service delivery model is an alternative to traditionally delivered and managed services, such as an agency delivery model. Self-direction of services allows participants to have the responsibility for managing all aspects of service delivery in a person-centered planning process.”

“Self-direction promotes personal choice and control over the delivery of waiver and state plan services, including who provides the services and how services are provided. For example, participants are afforded the decision-making authority to recruit, hire, train and supervise the individuals who furnish their services. The Centers for Medicare & Medicaid Services (CMS) calls this “employer authority.” Participants may also have decision-making authority over how the Medicaid funds in a budget are spent. CMS refers to this as “budget authority.”  States have several options under the state plan and waivers for providing enrollees with the option to self-direct Medicaid services:

• Home and Community-Based Services State Plan Option-1915(i)
• Community First Choice-1915(k)
• Self-Directed Personal Assistance Services State Plan Option-1915(j)
• Home and Community-Based Services Waiver Programs-1915(c)”^[3]

3. Secretary of Health and Human Resources Form an Emergency Reserve Medical Corps

• Secretary of Health and Human resources adopt the recommendation of the President of the Medical Society of Virginia to coordinate short office work week implementation between with independent specialist physicians offices and the state and local Departments of Health to form a reserve medical corps to support hospitals and primary care providers as may be required.
• Commissioner of Insurance and Department of Medical Assistance Services support this effort to ensure that such medical professionals can get paid for the work of assisting in the crisis.
• Code of Virginia § 8.01-225. Persons rendering emergency care, obstetrical services exempt from liability “Any person who: “In good faith, renders emergency care or assistance, without compensation, to any ill or injured person (i) at the scene of an accident, fire, or any life-threatening emergency; (ii) at a location for screening or stabilization of an emergency medical condition arising from an accident, fire, or any life-threatening emergency; or (iii) en route to any hospital, medical clinic, or doctor’s office, shall not be liable for any civil damages for acts or omissions resulting from the rendering of such care or assistance.” Attorney General render an advisory opinion on whether Code of Virginia § 8.01-225 will cover the new emergency reserve medical corps.   If not, General Assembly and Governor amend it to do so.

4. Governor petition CMS and Insurance Commissioner ask licensed health insurers to reduce mandatory medical reporting requirements except those that would threaten patient and provider safety.

5. Secretary of Health and Human resources oversee the sharing of personal protective equipment and clothing among health systems, hospitals and independent physicians to ensure the protection of all.

6. Virginia Department of Health Professions relax occupational licensing rules and regulations as appropriate to limit the need for specialized facilities.

7. Virginia Department of Health Professions grant full practice authority to advanced practice registered nurses (APRNs). APRNs (nurse practitioners, nurse anesthetists, nurse-midwives, and clinical nurse specialists) should be enabled to practice to their full scope of education, training, and certification.

8. Governor or General Assembly with the advice of the Department of Health Professions consider permitting pharmacists

• to make non-narcotic medicine refills available without new prescriptions on a limited emergency basis.
• test for and prescribe medication for non-chronic conditions.

9. Commissioner of Insurancereview authorities and attempt to ensure that insurance network considerations do not hamper the delivery of care during the crisis.

• Request additional authorities from the General Assembly as appropriate.
• General Assembly remove state limitations on short-term and catastrophic health policies in the absence of COBRA protections.

The Consolidated Omnibus Budget Reconciliation Act (COBRA) gives workers and their families who lose their health benefits the right to choose to continue group health benefits provided by their group health plan for limited periods of time under certain circumstances such as voluntary or involuntary job loss, reduction in the hours worked, transition between jobs, death, divorce, and other life events.

COBRA generally requires that group health plans sponsored by employers with 20 or more employees in the prior year offer employees and their families the opportunity for a temporary extension of health coverage (called continuation coverage) in certain instances where coverage under the plan would otherwise end.Investigate to see whether the laws governing short-term and catastrophic  insurance plans may need to be relaxed so that people who lose their coverage during the pandemic can replace it.  COBRA will not work in cases in which the corporation that has maintained the benefit plan goes bankrupt.

B. Other Recommendations

General Assembly and Governor delay the legislated increase in Virginia’s minimum wage as appropriate to the crisis.

General Assembly consider a sales tax holiday.

Governor and local governments repurpose money used to attract business to health related initiatives.

Virginia match the IRS deadline for filing taxes.

Governor permit commercial instruction of recreation activity in public parks.

General Assembly extend state tax breaks to businesses especially affected by the COVID 19 emergency.

Delay the implementation of any state government energy mandates.

Temporarily nullify any taxes or restrictions on single use plastics.

General Assembly seek state Supreme Court opinion on using emergency discretion to allow legislators to hold committee meetings and vote via teleconferencing. Broadcast the proceedings to permit public participation, perhaps by email, and record the proceedings to comply with the records acts.

Attorney General aggressively enforce the Virginia Post-Disaster Anti-Price Gouging Act.

A version of this list was originally developed for the state of Colorado and published by IndependenceInstitute.org.  At the request of the Thomas Jefferson Institute for Public Policy, it has been heavily modified by James C. Sherlock in a very short term attempt to make it relevant to Virginia.  No attempt has been made to keep up with rapidly changing federal and state actions that may affect this list.  Corrections will be made by the appropriate state officials and General Assembly members should they consider these recommendations.

^[2] https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertEmergPrep/1135-Waivers

^[3] https://www.medicaid.gov/medicaid/long-term-services-supports/self-directed-services/index.html