COVID-19 Federal and State Updates
The Pennsylvania Health Law Project (PHLP) is monitoring the impact of the novel coronavirus (COVID-19). As COVID-19 spreads, we are committed to making sure those with Medical Assistance (MA) and the Children’s Health Insurance Program (CHIP) coverage have services, and to securing insurance coverage for the uninsured. PHLP staff are available to counsel and represent Pennsylvanians throughout the state. Our toll-free Helpline (1-800-274-3258) remains open every Monday, Wednesday, and Friday from 8 AM to 8 PM. We can also be reached at staff@phlp.org.
The Pennsylvania Department of Health’s website has the most accurate information on the spread of COVID-19, including statewide mitigation and stay at home orders. At the time of publication (March 31, 2020) there were 63 deaths linked to 4,843 confirmed COVID-19 cases.
FEDERAL & STATE UPDATES
PA Cannot Change Medicaid Eligibility Criteria In Exchange For Increasing Medicaid FMAP
The Centers for Medicare & Medicaid Services (CMS) has issued guidance on the temporary 6.2 percent increase in the Federal Medical Assistance Percentage (FMAP) as part of the Families First Coronavirus Response Act. For states, like Pennsylvania, to be eligible for the enhanced funding, states must maintain Medicaid and CHIP eligibility standards, not charge premiums that exceed those that were in place as of January 2020, and cover any cost sharing, testing, services and treatments related to COVID-19. Additionally, states are required to provide continuous coverage for all Medicaid beneficiaries until the end of the month in which the emergency period ends. The increase will be retroactive to January 1, 2020. As described in our FAQs, Pennsylvania has agreed to abide by CMS’ guidance. Advocates should be aware that Pennsylvanians with Medicaid (MA) coverage on or after March 18th cannot lose that coverage until the end of the public health emergency.
Federal Government Approves PA’s Request For Medicaid Flexibility
When the President declares a disaster or emergency and the US Health and Human Services Secretary declares a public health emergency, the federal government may temporarily waive or modify certain Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) requirements to ensure that sufficient health care services are available to meet the needs of individuals enrolled in those Social Security Act programs. The Kaiser Family Foundation has an excellent summary and tracker of Medicaid emergency authority available here.
Knowing that Pennsylvania Medicaid officials were preparing their waiver application, on March 17th PHLP and dozens of other consumer advocates and essential health care providers urged the state ask for permission to halt all terminations of Medicaid coverage and to direct MCOs insurers to halt all service denials. The entirely of our recommendations can be found here.
On March 27th federal government approved Pennsylvania's request for Medicaid flexibility during the Coronavirus emergency. Click here to view CMS’s approval notice. The federal government’s “approval” of the waiver does not change all things. The state must still take action to use the authority granted by the waiver, which applies to the Medicaid Fee-for-Service Program, HealthChoices managed care for physical and behavioral health services, Community HealthChoices (CHC), and Home and Community Based Services (HCBS) waivers.
Through a different pathway, known as Appendix K, the federal government also approved changes to waivers operated by the office of Long Term Living (OLTL) and Developmental Programs (ODP). This approval applies to the Adult Autism and Community HealthChoices waivers from March 6, 2020 through June 30, 2020 and from March 11, 2020 through March 11, 2021 for the OBRA, Consolidated, P/FDS, and Community Living Waivers. Click here to see a list of the Appendix K approvals.
OLTL has notified both providers and MCOs that there should be no reduction in waiver services like Personal Assistance Services (PAS) hours, no termination of services, and no reassessments of long-term services and supports during the emergency. OLTL has also said that consumers who appear to lose their eligibility in the system during the emergency should continue to receive services.
PHLP has prepared answers to a list of frequently asked questions (FAQs) about the impact of these waivers on consumers.
US Civil Rights Office Rejects Rationing Medical Care Based On Disability Or Age
On March 28th, the U.S. Department of Health and Human Services’ civil rights office told medical providers that they may not deny medical care to people based on their disabilities or age during the coronavirus emergency. The directive, released in a bulletin, came days after disability rights advocates filed complaints arguing that protocols to ration lifesaving medical care — adopted by Alabama and Washington State — were discriminatory.
On March 27th, the Pennsylvania Medical Assistance Advisory Committee (MAAC) unanimously approved a resolution exhorting Governor Wolf to ensure that when it comes to the allocation of life-saving treatment 1) patients are not discriminated against because of their Medical Assistance Insurance status, and 2) people with disabilities are not given lower priority because of preexisting disabilities, even when those conditions require more scarce resources. The MAAC also requested that any guidelines developed be developed with the stakeholders and experts listed in the resolution, and that they be released to the public once finalized.
Governor Wolf has also stated his strong commitment to ensuring all Pennsylvanians receive fair and equitable access to lifesaving health care during the COVID-19 pandemic; and will not tolerate discrimination in the allocation of lifesaving resources based on any factor including, but not limited to age, disability and socioeconomic status.
EVV Delayed Until October
The state announced it is moving the implementation date for electronic visit verification (EVV) for direct care workers providing personal assistance services to October 1, 2020 because of the COVID-19 crisis.
COVID-19’S Impact On Grievances & Fair Hearings
Physical and behavioral HealthChoices MCOs can reduce or terminate services (e.g., pediatric in-home care), and Community HealthChoices MCOs can reduce or deny non-waiver services. That means MCOs must still send consumers written denial notices explaining the reduction or denial of services and give consumers a chance to appeal before any reduction occurs.
CHC-MCOs are not allowed to make any reductions or terminations of waiver services (e.g., Personal Assistance Services) for the next three months.
The state has directed BH-MCOs to offer telephonic or videoconference grievance reviews, if a member’s request for an in-person review cannot be accommodated. PHLP expects the state to issue similar guidance to PH-MCOs and CHC-MCOs.
Fair Hearings involving both MA eligibility matters, and service denials will be held exclusively by telephone beginning April 1, for the duration of the COVID-19 crisis. The Bureau of Hearings and Appeals (BHA) previously cancelled all fair hearings scheduled from March 17-31, 2020, including both in-person and telephonic hearings. Those hearings, and any new hearings requested in the interim and going forward, will now be held by phone. This is true even if an in-person hearing was previously scheduled.
Reminder: People who request a fair hearing within ten days of a grievance decision denying services will continue to get that service while the hearing is being scheduled and decided, as is always required.
PHLP is advocating for interim benefits for those without continued benefits or services in place while this emergency progresses. This would mean that if fair hearings are delayed a person would be able to temporarily receive their benefits or services while awaiting the hearing. This is already a requirement when a fair hearing decision has not been issued within 90 days of a person first appealing a Medicaid benefits or service denial, but it is not a well-known right. PHLP is closely monitoring developments around BHA and hearings and we will provide updates as we have them.
Anyone who experiences a termination, reduction, or denial of benefits or services can contact PHLP for counselling and representation. You can reach us on our Toll-Free Helpline at 1-800-274-3258 or by e-mail at staff@phlp.org.
PHLP will continue to monitor COVID-19 and make recommendations to policymakers and update readers as we learn more.
