COVID Updates (April 23, 2020)

Congressional Action

Today, April 23, 2020, the House is expected to pass a fourth COVID-related bill that was passed by the Senate earlier this week. An interim emergency funding package: H.R. 266 – The Paycheck Protection Program and Health Care Enhancement Act would provide $484 billion in funding to small businesses, hospitals, and for COVID-19 testing.

Congress is also working on another large COVID bill currently dubbed “CARES 2” after the third COVID-related bill passed on March 27 (see here). Although the bills to date have included some provisions that help older adults and individuals with disabilities, advocates for these communities note that additional measures must be taken in order to ensure that the needs of these populations are adequately addressed.

For examples of additional measures promoted by various advocacy organizations, see, e.g., coalition letters from:

• Leadership Council of Aging Organizations (LCAO) https://www.lcao.org/; and
• Consortium for Citizens with Disabilities (CCD) http://www.c-c-d.org/.

CMA Advocates Guide

On April 17, the Center released an Advocates Guide that addresses beneficiary-related policy changes during the current COVID crisis.  The Guide, updated on April 20, will periodically be further updated as possible, as new legislation passes and additional guidance is issued by CMS. The Guide is available here.

CMS Updated Guidance – Medicare Advantage and Part D
CMS continues to issue guidance, including a recently updated Medicare Advantage and Part D Guidance document (April 21, 2020).  The updated guidance reinforces requirements that plans must follow, and highlights policies which plans have discretion to change, primarily due to temporarily relaxed enforcement of certain requirements by CMS. Among other things, the new guidance notes:

Medicare Advantage (MA) Plans

• CMS says it is temporarily relaxing enforcement of rules that prevent MA plans from changing benefits mid-year in connection with the COVID outbreak, and encourages MA plans to, among other things, expand benefits, add additional benefits, institute “more generous cost-sharing” as long as such measures are “provided uniformly to all similarly situated enrollees” – CMS states that MA plans “may implement additional or expanded benefits that address issues or medical needs raised by the COVID-19 outbreak, such as covering meal delivery or medical transportation services to accommodate the efforts to promote social distancing during the COVID-19 public health emergency.”
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• CMS encourages MA plans to “waive or reduce enrollee cost-sharing for beneficiaries […] impacted by the outbreak. For example, Medicare Advantage Organizations may waive or reduce enrollee cost-sharing for COVID-19 treatment, telehealth benefits or other services to address the outbreak provided that MAOs waive or reduce cost-sharing for all similarly situated plan enrollees on a uniform basis. CMS clarifies that this flexibility is limited to when a waiver or reduction in cost-sharing can be tied to the COVID-19 outbreak.”
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• CMS encourages MA and Part D plan flexibility concerning involuntary disenrollment for non-payment of premiums. “CMS would like to remind plans of their ability to apply flexible policies to members who are unable to pay plan premiums. Plans are not required under existing regulations to disenroll members due to failure to pay plan premiums; however, plans must apply the same policy consistently for all enrollees of the applicable plan. For those plans that have elected a policy to disenroll for non-payment of premium, we encourage you to consider changing the policy so that the plan would not disenroll members for non-payment of premium. If a plan chooses not to eliminate its disenrollment policy, we encourage the plan to increase the mandatory grace period (at least two months) to a longer period of time. Plans may make these types of changes mid-year as long as the change is applied to everyone in the plan and the plan notifies its CMS account manager.”
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• CMS is temporarily relaxing enforcement of rules requiring Special Needs Plans (SNPs) to disenroll individuals who lose special needs status – CMS notes “relaxed enforcement with respect to MA organizations that choose to delay to a later date the involuntary disenrollment of enrollees who are losing special needs status and cannot recertify SNP eligibility due to the COVID-19 national emergency”
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• CMS is allowing plans to be more flexible concerning disenrollment of members temporarily absent from the plan’s service area – CMS “will allow MA organizations to extend the period of time members may remain enrolled while temporarily absent from the plan service area through the end of the year, or the end of the public health emergency, whichever is earlier. Individuals who remain absent from the service area will be disenrolled January 1, 2021, if the public health emergency is still in effect at that time, or 6 months after the individual left the service area, whichever is later.”
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• MA plans “may choose to waive or relax plan prior authorization requirements at any time in order to facilitate access to services with less burden on beneficiaries, plans, and providers. Any such relaxation or waiver must be uniformly provided to similarly situated enrollees who are affected by the disaster or emergency. We encourage plans to consider utilizing this flexibility.”
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• CMS reminds MA plans “of their requirements under 42 CFR § 422.100(m) to provide coverage for care from non-contracted providers” as previously outlined in CMS guidance
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• Note that the Center for Medicare Advocacy has encountered plans that were unaware of such obligations, and have had to contact at least one MA plan legal department in order to educate them

Part D Plans

• CMS is encouraging plans to waive or relax prior authorization requirements – “Part D Sponsors may choose to waive prior authorization requirements at any time that they otherwise would apply to Part D drugs used to treat or prevent COVID-19, if or when such drugs are identified. Sponsors can also choose to waive or relax PA requirements at any time for other formulary drugs in order to facilitate access with less burden on beneficiaries, plans, and providers. Any such waiver must be uniformly provided to similarly situated enrollees who are affected by the disaster or emergency. We encourage plans to consider utilizing this flexibility.”
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• CMS reminds plans that, pursuant to the recently-passed CARES Act, “Part D sponsors must suspend all quantity and days’ supply limits under 90 days for all covered Part D drugs (as defined in 42 CFR § 423.100) other than such limits resulting from safety edits [discussed further in the guidance]. Part D sponsors may otherwise continue to utilize their formularies, tiered cost-sharing benefit structures, and approved prior authorization (PA) and step therapy (ST) requirements. There are no alterations to mid-year formulary change requirements, and we remind sponsors that new drugs may be added and utilization management requirements removed at any time.”
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• CMS clarifies that with respect to a 90–day supply of drugs, “Part D sponsors must permit enrollees to obtain the total days supply prescribed for a covered Part D drug (as defined in 42 CFR § 423.100) up to a 90-day supply in one fill (or one refill) if:
• Requested by the enrollee,
• PA or ST requirements have been satisfied; and
• No safety edits otherwise limit the quantity or days supply.

• In addition, among other things, “CMS is exercising its enforcement discretion to adopt a temporary policy of relaxed enforcement” in connection to Part D plans’ response to the COVID crisis, including waiving Part D medication delivery documentation and signature log requirements.

CMS Update Guidance – Medicaid
The Centers for Medicare & Medicaid Services (CMS) recently released additional guidance to states on the COVID-19 relief bill, Families First Coronavirus Response Act. The guidance is in the form of a set of Frequently Asked Questions (FAQs) that addresses enhanced federal Medicaid funding and other topics related to the national health emergency.

Congressional Letter re: Medicaid Maintenance of Effort (MOE)
This week, over 150 Members of Congress sent a letter to Congressional leadership calling for preservation of the Medicaid maintenance of effort (MOE) requirements in the next legislative COVID-19 relief package; these requirements keep states from effectively diverting federal money, intended to help them keep their Medicaid programs intact, to other parts of their budgets. The MOE requirements were included as part of the temporary increase in the federal Medicaid payment to states (FMAP) in the “Families First Coronavirus Response Act (Families First).” That MOE ensures states cannot reduce or terminate coverage, or impose harmful restrictive procedures during the official public health emergency. The letter was written in response to concerns that some members of Congress will attempt to weaken these important protections in the next COVID-19 relief package, as some members did during negotiations for the previous package.

According to analysis by the Center on Budget and Policy Priorities, the MOE in Families First is “especially strong.” The analysis found that weakening the MOE protections could cause hundreds of thousands of people to lose coverage and become uninsured in the months ahead.

• Center on Budget and Policy Priorities Analysis: https://www.cbpp.org/blog/congress-should-reject-attempts-to-weaken-medicaid-protections-enacted-in-bipartisan-covid-19