Waivers Granted by CMS During Public Health Emergency Set to Expire in April

WASHINGTON — The Centers for Medicare and Medicaid Services is allowing states to temporarily modify or waive certain Medicare and Medicaid requirements through the use of emergency waivers, but some of those may expire come April.

“The emergency regulatory relief was granted by HHS or CMS because of the declaration of the public health emergency, which was just recently extended and is set to expire in April,” said Stephanie Anthony, senior advisor at Manatt Health Strategies, in an email to The Well News.

“When the public health emergency expires, provisions and regulations that were previously made permanent during the pandemic will remain in place and become a permanent part of those states’ Medicaid programs or broader health systems. States will continue to make assessments and decisions surrounding their efforts to make certain temporary flexibilities permanent in 2022,” continued Anthony.

Emergency waivers, known as 1135 waivers, were granted to states under the Social Security Act because of the declaration of the COVID-19 public health emergency. The declaration can be renewed, but is set to expire on April 16, 2022.

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“Some states have decided to make some select temporary Medicaid flexibilities permanent,” said Anthony.

According to Anthony, so far, only a few states have done this, including Arkansas, which last year revised two state policies, HB1134 and HB1135, to permanently allow pharmacy technicians to administer COVID vaccinations. 

Pennsylvania was one of the states to expand the ways in which telemedicine could be used for behavioral health treatment through a series of laws.

A bill in Massachusetts S.2984, allowed for the removal of financial and insurance barriers to telehealth services, and eliminated certain care practice restrictions to expand the health care workforce.

North Carolina, California, and Massachusetts also used a special set of waivers, known as 1915 (c) waivers, to tailor their managed care plans to be more holistic, with an increased focus on social determinants of health — such as nutrition supports, covering housing, or addressing transportation hardships.  

The 1915 (c) waivers were available to states for modifying community-based and home services prior to the pandemic, but often only in limited circumstances and for targeted populations.

Now, according to Anthony, states can use 1915 (c) waivers along with the emergency waivers granted during the public health emergency to address a broader high-need Medicaid-covered population.

“Many states developed these initiatives and worked with CMS on approvals prior to COVID, but the pandemic has certainly informed and emphasized the need to expand access to community support services that impact and improve people’s social determinants of health, such as housing, food security, and transportation, through their Medicaid managed care programs,” said Anthony.

Another challenge that some states may face is that CMS also recently proposed a new integrated care plan rule that will impact states which offer specialized Medicare Advantage plans that exclusively serve dual eligibles, or those who receive both Medicaid and Medicare. 

“Based on the Dual Eligible Special Needs Plans changes proposed in this rule if they become final, CMS signaled its intent to transition all Medicare-Medicaid Plans,” said Anthony.

About 10 states already have a dual demonstration or financial alignment that will need to transition to meet the requirements of the proposed rule.

This includes New York and Virginia, which have already transitioned to fit the new requirements, and California which will transition starting in 2023.

The Biden administration has committed to giving a 60-day notice in advance of the end of the public health emergency, but for now, Anthony said states will need to determine their approaches for a possible return back to “normal” Medicaid operations. 

“In December 2020 and August 2021, CMS issued guidance to states on public health emergency unwinding and planning for a return to normal Medicaid operations,” said Anthony. 

According to Anthony, the guidance from CMS is intended to help states in navigating the end of the continuous Medicaid coverage requirements in the Families First Coronavirus Relief Act. 

The guidance also provides an understanding about state processes and timeframes for re-starting Medicaid redeterminations, including for any temporary regulatory flexibilities. 

Anthony said that for now, the guidance indicates that public health-related flexibilities will expire shortly after the end of the public health emergency, unless a state is willing to push for reforms.

“To the extent a state wants to pursue a specific temporary reform, it could do so by submitting a waiver or state plan amendment to pursue the change after the end of the public health emergency,” said Anthony.

Alexa can be reached at [email protected]