COVID-19 Waivers

Overview

As noted on our COVID-19 legislation page, The Families First Act includes a 6.2% increase in federal matching Medicaid funds, which is a good start, but not enough additional Medicaid funding to ensure state Medicaid systems can handle the high health care costs and increased enrollment and need for Medicaid anticipated to be a consequence of this crisis. The disability community is advocating for an additional increase to Medicaid funding, including additional grant funding for the home and community-based services (HCBS) on which many people with disabilities rely. However, we are also monitoring COVID-19 related HCBS guidance from federal agencies and related state activities, detailed below. A tracker of the state actions approved by the Centers for Medicare and Medicaid Services (CMS) under Medicaid emergency authorities can be found here.

Appendix K Waivers

Section 1915(c) waivers allow states to develop HCBS programs to provide services to people with disabilities in their homes and communities, as opposed to providing those services in institutions, as required by Medicaid. These waivers are currently used by nearly every state and DC. However, Appendix K of Section 1915(c) allows for changes to be made to states’ 1915(c) waivers in the event of an emergency and CMS has released instructions and a template for states in response to COVID-19. There are a number of beneficial flexibilities available to states, including the ability to consider family members providers and adding home delivered meals to the array of provided HCBS services, among other things. However, increasing waiver capacity to meet the needs of people on HCBS waitlists, and how to address closure of programs or the inability of direct service workers to provide services, among other critical concerns, are not addressed by the CMS guidance. The National Health Law Program has a detailed review of the CMS guidance and trends in state Appendix K approvals, available here.

Section 1135 Waivers

Section 1135 is an emergency authority that allows for states waive or modify certain Medicaid, Medicare, and CHIP requirements for the duration of a national emergency. CMS created a template and instructions for states to amend their state Medicaid plans in response to COVID-19 and a checklist for states seeking 1135 waivers. CMS also issued a number of blanket waivers, meaning that states do not have to apply to make alterations to their state Medicaid plans if the changes are covered by those blanket waivers. These include increased flexibility around coverage of care in skilled nursing facilities that raise concerns around medical rationing and unnecessary institutionalization.  For more details, check out this tracker from Georgetown University’s Center for Children and Families.

Section 1115 Waivers

States may also choose to submit a request for a Section 1115 demonstration and CMS has provided a template to do so here. Such a demonstration can extend HCBS services like those typically provided under Section 1915(c) to other populations covered in a state’s plan. However, states are also provided the flexibility to provide long term services and supports (LTSS) to individuals in “alternative settings.” We are continuing to monitor how states elect to use those flexibilities. Approved and pending 1115 waivers can be found here (though note that this tracker includes 1115 waivers that are not related to COVID-19 as well).

Additional Resources

General

Appendix K

Section 1135

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