Health Policy Implications Related to COVID-19
Contributed by: Health Policy Committee Member Sarah Green, DNP, CPNP-AC
In the midst of the COVID-19 pandemic there are numerous fronts to the crisis that deserve the attention of NAPNAP members including, healthcare supplies and equipment to care for patients and protect front-line healthcare professionals, access to healthcare, COVID-19 testing, and mental wellbeing related to economic insecurity. In this piece, we will take a deeper dive into two specific legislative responses to the COVID-19 crisis. This includes the Defense Production Act Authorities and state responses to temporary suspension and waived practice agreement requirements.
Defense Production Act
The Defense Production Act (DPA) of 1950 (50 U.S.C. 4501 et seq.) is the chief “source of Presidential authorities to expedite and expand the supply of resources from the U.S. industrial base to support military, energy, space, and homeland security programs.” The act provides the President with “a broad set of authorities to influence domestic industry in the interest of national defense,” as outlined in the updated Congressional Research Service report.
Enacted in 1950 in response to the start of the Korean War, the DPA was one component of the Unites States’ broad civil defense and war mobilization effort regarding the Cold War. Emergency preparedness activities fall under the umbrella of homeland securities programs eligible for DPA support and have been used regularly since creation of DPA, however the allocations provision of the DPA has not been used since the Cold War.
On March 13, 2020, President Trump invoked the Defense Production Act in recognition of the threat that the COVID-19 virus posed to U.S. healthcare systems. This response followed the March 11, 2020, World Health Organization (WHO) classification of COVID-19 as a pandemic. The act has three primary components:
- Title I, Priorities and Allocations, allowing the President to require corporations to accept and prioritize contracts for services and materials considered essential to aid in U.S. national defense.
- Title III, Expansion of Productive Capacity and Supply, which provides the President with authority to develop incentives for commercial industry to produce materials deemed critical.
- Title VII, General Provisions, institutes government authority to set agreements with private industry, to stop foreign corporate mergers that could threaten national security and to develop a volunteer bloc of industry executives who have the potential to be called upon to provide government service.
In the context of this public health crisis, the purpose of invoking the DPA is to ensure that critical health and medical resources needed to respond to COVID-19 are properly allocated and distributed to the Nation’s healthcare systems and others that are most in need, including personal protective equipment (PPE) and ventilators. The DPA provides a mechanism for fostering cooperation between defense and commercial sectors for the acquisition of these materials and equipment.
Utilizing DPA during the COVID-19 pandemic:
- Requiring private sector corporations and businesses to “prioritize and accept government contracts” and control how the supplies are distributed to those in need, including preventing foreign distribution.
- Establishing voluntary agreements with industries to help make ventilators.
There is a measure of Congressional oversight over certain provisions with the DPA. For example, if the President were to set wage and price controls on the cost of PPE, a Congressional joint resolution would be required. Additionally, Congress is required to authorize loans and loan guarantees worth more than $50 million. However, the extent and potential waiver of oversight in the time of national emergency are uncertain and unchartered territory.
Temporary Suspension and Waived Practice Agreement Requirements
In response to the COVID-19 pandemic CMS has issued an unprecedented number of regulatory waivers to help the U.S. healthcare system maximize its response. Under the federal emergency declaration and rulemaking these regulatory waivers are seeking to ensure that hospitals and healthcare systems have the capacity to handle the surge of COVID-19 patients, which includes remove hiring barriers and practice agreement requirements.
Although at the federal level regulations have been relaxed through the duration of the pandemic, it is at the discretion of states and healthcare systems as to whether they will choose to temporarily suspend or waive practice agreement requirements. There is great variability in states’ responses and responses are being updated weekly. These variations include states where all practice agreement requirements have been temporarily suspended to states where select practice agreements requirements have been temporarily waived and to other states that have taken no action to waive practice requirements. You can learn more on AANP’s Temporarily Suspended and Waived Practice Agreement Requirements webpage. NCSBN is also trying to track emergency responses in relation to nursing in states. NPs should review state specific regulations to clearly understand current scope of practice regulations.
Visit NAPNAP’s Coronavirus Safety webpage for all kinds of provider, student and patient resources. The page also has important info related to legislation and regulatory matters, including state-level executive orders for temporary waivers and suspensions affecting practitioners.
Shortages, Economic Harm Spur Work on More Pandemic Emergency Aid
As the economy and the healthcare system struggles to cope with the COVID-19 pandemic, lawmakers are negotiating another relief package that could be voted on by the end of April. After initially talking about a wide-ranging “phase four” plan, congressional leaders appeared by April 7 to be focusing on a “CARES 2.0” proposal that could essentially extend more emergency funding to states and small businesses, expand unemployment benefits, and provide more direct cash assistance to individuals and families.
Healthcare systems and providers also pushed for additional help to secure personal protective equipment (PPE), hazardous duty pay and other aid as the pandemic stretched response efforts closer to a breaking point. An April 6 report from the Health and Human Services Department’s inspector general found that hospitals continued to face dire shortages of vital medical equipment including testing kits and thermometers and feared they couldn’t ensure the safety of health care workers. President Trump disputed the findings, calling them inaccurate and politically motivated.
Congress, Administration Ease Practice Barriers in COVID Response
Acknowledging the need to make greater use of advanced practice registered nurses to confront the coronavirus public health emergency, both Congress and the Trump administration took significant steps to remove policies restricting APRN practice. The Center for Medicare and Medicaid Services issued regulations (CMS-1744-IFC) March 30 to give hospitals and health systems greater flexibility in handling the crush of COVID-19 cases, including waiving federal requirements in some circumstances to give nurse practitioners and physician assistants greater practice authority in accordance with a state’s emergency preparedness or pandemic plan, including ordering tests and medications that may have previously required a physician’s order. The regulations also allow practitioners to order Medicaid home health services within their scope of practice during the emergency.
The regulations followed congressional approval of three massive legislative packages attempting to respond to the crisis, including the $2 trillion “Coronavirus Aid, Relief, and Economic Security (CARES) Act” (H.R. 748) March 27 that addressed two long-standing nursing priorities – authorizing APRNs to certify home health services for Medicare patients and reauthorizing funding for nursing workforce development programs under Title VIII of the Public Health Service Act.
Earlier, the Trump administration announced an expansion of telehealth services March 17 to support efforts to keep Medicare patients from visiting clinicians’ offices in person and risk spreading or catching the coronavirus, including authorizing APRNs to provide telehealth care during the public health emergency. The policy also relaxed privacy enforcement and payment restriction to allow clinicians to see patients on popular video platforms during the emergency.
Medicaid Policies Shift in Response to COVID Emergency
In addition to authorizing APRNs to order home health services, state Medicaid programs implemented other policies to cope with the coronavirus pandemic. Many states sought federal approval for Section 1135 Medicaid emergency waivers, with more than 40 granted greater flexibility to eliminate some prior authorization and provider enrollment requirements and streamline payment to providers for care delivered in alternative settings due to facility evacuations.
Utah officials suspended that state’s Medicaid work requirements April 3, citing the COVID-19 pandemic and its impact on the state’s economy – Utah had been the only state with an active work requirement program, and similar mandates are now on hold in every state that received CMS approval to implement them. Several states have had their programs blocked by federal courts, while others have voluntarily delayed or suspended implementation.
The Centers for Medicare and Medicaid Services (CMS) on March 24 also withdrew proposed regulations aimed at cracking down on state Medicaid eligibility determinations. Many healthcare experts worried that stricter eligibility rules would make it tougher for eligible people to enroll in the program and maintain coverage, even if it successfully lowered improper enrollment. However, the agency is proceeding to implement rules that could restrict states’ options for financing their portion of Medicaid costs.
In Other News…
Administration Rejects Reopening ACA Exchanges
Despite calls from health insurers as millions faced the loss of employment and insurance coverage due to the pandemic, the White House refused March 31 to reopen the federal HealthCare.gov marketplace in a special enrollment period. Instead, the administration said it would cover the cost of uninsured patients’ coronavirus treatments by paying hospitals for their costs. Twelve of the 13 states that run their own health exchanges had already reopened their enrollment periods.
Meanwhile, the Supreme Court agreed April 3 to extend the briefing schedule in the high-profile California v. Texas lawsuit challenging the constitutionality of the Affordable Care Act, a move that Democratic state attorneys general said could lead to oral arguments in October. The coalition of 20 Democratic AGs will now submit their initial briefs on May 6, but there’s no date set for oral arguments.
Virus Raises Vaping Risk But Could Delay Product Reviews
Patients with a history of vaping or smoking tobacco or cannabis are at a higher risk of “more severe complications from COVID-19,” the National Institute on Drug Abuse said April 2, but federal regulators asked a federal court to extend the deadline for manufacturers to submit premarket product applications. The NIDA said health conditions that increase the risk of infection and death from the virus “may increase risk for death and illness among smokers, tobacco or cannabis.”
A day earlier, the Food and Drug Administration on April 1 asked a Maryland federal district court for 120-day extension of May 12 deadline it originally set in long-standing litigation seeking to remove from the market vaping and tobacco products that haven’t been reviewed by the agency, citing the extension “solely because of the coronavirus outbreak.” If granted, the motion would push the deadline for applications back to Sept. 9.
Before Congress adjourned for its extended break, the House on Feb. 28 narrowly passed the “Protecting American Lungs and Reversing the Youth Tobacco Epidemic Act of 2019” (H.R. 2339), the sweeping bill to ban all flavored tobacco products and tax e-cigarettes, after Democratic leaders scrambled to win the support of members who worried that the measure would target people of color. The bill is unlikely to get a Senate vote, and it would face a veto if it reached the President’s desk in its current form.
