Scope of Practice and Licensing
Out of concern that an increase in COVID-19 cases may overwhelm the health care system, state officials from both the executive and legislative branches are temporarily waiving certain requirements to mitigate health care workforce barriers. Many states are evaluating scope of practice (SOP) laws, which dictate the practice authority for different health care professionals, to enhance the role of certain providers responding to COVID-19—such as nurse practitioners, physician assistants and pharmacists. For example, Kentucky SB 150 authorizes the Kentucky Board of Medical Licensure, the Kentucky Board of Emergency Medical Services and the Kentucky Board of Nursing to waive SOP requirements allowing providers to practice in all health care settings. The legislation also allows medical students to conduct triage, diagnose and treat patients under the supervision of a licensed health care professional.
Additionally, more than 40 states are temporarily modifying licensing requirements and establishing expedited approval processes to recruit more health care workers during COVID-19. Vermont HB 742 allows the office of professional regulation to relax various licensing requirements for retired and out-of-state health care professionals, including mental health providers. NCSL is tracking the many changes to health care workforce licensing requirements.
Federal and state officials are pursing policy options to limit liability exposure for health care professionals and/or facilities providing COVID-19-related services. The Coronavirus Aid, Relief, and Economic Security Act provides immunity for volunteer health care providers during the COVID-19 emergency declaration, if a volunteer acts in good faith and within the scope of their medical license.
At least 27 states, the District of Columbia and Puerto Rico have provided some level of immunity for health care workers, health facilities or both during the pandemic through executive or legislative action. Seventeen states, the District of Columbia and Puerto Rico enacted legislation providing liability protections specifically in response to COVID-19. For example, Oklahoma SB 300 provides immunity from civil liability for health care providers and facilities for any loss or harm delivered to a patient believed or confirmed to have COVID-19. Other states already had existing laws providing immunity during a public health emergency. Virginia maintained certain liability protections for health care workers and first responders in cases of emergency, and the governor signed an executive order clarifying the existing statutes extended to health care workers responding to the COVID-19 crisis.
Access and Coverage
All 50 states and the District of Columbia have made some revision to their telehealth policies during the pandemic to increase access to health care services and minimize potential exposure to the coronavirus. To enhance the effectiveness and reach of telehealth, state policymakers are bolstering Medicaid and private insurance coverage, expanding access to different telehealth modalities, and enhancing the number of services delivered via telehealth. Additionally, states are evaluating certain requirements relating to provider licensure, patient/provider relationship standards and originating site criteria. Most of these state actions are temporary for the duration of the pandemic.
Vermont HB 742 encompasses several of these policy strategies by reducing licensing requirements for out-of-state providers, extending private insurance coverage to include teledentistry, requiring coverage for store-and-forward modalities, and requiring private insurance plans to provide the same reimbursement for telehealth as the insurer would for in-person services. Alaska SB 241 permits a provider to deliver certain services to a patient through telehealth without first having to conduct an in-person visit. Minnesota SF 4334 requires coverage for telemedicine services delivered directly to a patient in their own home by expanding the definition of “originating site” to include a patient’s residence.
Private Insurance Coverage
To ensure that the costs of COVID-19 related services do not deter patients from seeking necessary care, federal and state policymakers have looked to limit out-of-pocket expenses for COVID-19 prevention, testing and/or treatment. Federal law requires private health insurance plans to cover COVID-19 testing and federally recommended preventative care, including a vaccine, free of cost-sharing. Some states have established coverage requirements that exceed this federal standard. Additionally, states have established other requirements or recommendations relating to private insurance coverage during the COVID-19 pandemic, such as requiring coverage for COVID-19 treatment without cost-sharing, establishing special enrollment periods in states operating their own individual insurance marketplace, or requiring coverage for early prescription drug refills.
While most of these actions have come from the executive branch and departments of insurance, many states have enacted or introduced legislation relating to private insurance and COVID-19. For example, New Jersey SB 2344 requires Medicaid and private health insurance carriers to cover early prescription drug refills for up to a 30-day supply so enrollees can maintain an adequate supply during the pandemic. Louisiana SB 426 requires health insurance carriers to cover COVID-19 diagnostic tests, antibody tests and antiviral drugs for prevention and treatment free of cost-sharing.
With Medicaid covering 1 in 5 Americans—and some studies estimating tens of millions will be newly-eligible for Medicaid coverage after losing their employer-sponsored insurance during the pandemic—policymakers are leveraging the federal-state program within the context of both a public health and economic crisis. The Families First Coronavirus Response Act (Families First Act) provides a temporary 6.2% increase to regular Federal Medical Assistance Percentage rates, which is the portion of federal funding provided to each state for Medicaid expenditures. In order to receive this increased federal funding, states must agree to certain terms and conditions—such as providing continuous coverage for all enrollees, maintaining current eligibility requirements and waiving cost-sharing for COVID-19 testing and treatment. The Families First Act also allows states to cover COVID-19 testing for uninsured individuals through Medicaid, with the federal government covering 100% of the costs for testing. As of January 2021, at least 17 states have received federal approval to implement this option.
Policymakers are also turning to various waiver opportunities to ease certain Medicaid requirements and expand access to vital services. All 50 states and the District of Columbia have received federal approval for emergency Section 1135 Waivers to waive requirements in general areas like prior authorizations for services and provider credentialing. Forty-nine states have received approval for changes to their home and community-based services (HCBS) waivers—or Section 1915(c) Waivers—to ease requirements relating to long-term care for older adults and people with disabilities, populations particularly vulnerable during the pandemic.
Additionally, state legislators and other officials are increasingly focusing on appropriations, financing and provider rate payments for their Medicaid programs in light of COVID-19. For example, Washington HB 2965 authorizes the department of social and health services to determine adequate Medicaid payment rates for nursing facilities responding to COVID-19. Facing budget shortfalls, states are pursuing cost containment strategies to lower Medicaid costs. For instance, Colorado’s FY 2020-2021 budget reduces certain optional benefits (unless the COVID-19 emergency period extends beyond December) and decreases community provider rate payments by 1% for some health care workers treating Medicaid enrollees to help make up for the state’s $3 billion budget deficit.