An unprecedented amount of federal, state, and local laws, regulations, orders, and the like have been promulgated as the U.S. struggles to deal with the Covid-19 crisis.
Whether and to what extent state and local officials are able to coordinate with Congress and federal policymakers on key issues will be an important determinant of how the health-care system is able to respond to Covid-19.
This articles addresses three examples of health-care coverage and reimbursement dynamics occurring in the marketplace as result of Covid-19: effects of the Families First Coronavirus Response Act, managed care contract considerations, and effects of the pandemic on the opioid crisis.
Taken together, these changes, among many others at the federal, state, and local level reflect the urgent need for coordinated policy-making in the regulation of the coverage, payment and delivery system to help the health care system respond to Covid-19, while continuing to adequately meet the health-care needs of the American public.
Families First Coronavirus Response Act
The Families First Coronavirus Response Act (H.R. 6201), signed into law March 18, provides approximately $104 billion to help fight Covid-19 and protect workers and families from the health and economic impact of the virus.
The act includes, among other things, provisions requiring coverage for Covid-19 testing without cost-sharing, prior authorization, or other medical management requirements across all the health insurance program markets in the country, and providing funding for the provision of testing to uninsured Americans.
The act also includes emergency enhanced funding for state and territorial Medicaid programs to offset projected increased service utilization related to the treatment of Covid-19.
However, the act is silent as to the price that plans and providers must agree to for the test and visit. This means that the reimbursement rates established under each coverage program for diagnostic laboratory testing and associated services will likely continue to control.
The Centers for Medicare & Medicaid Services has promulgated new codes for the coverage and reimbursement of the Covid-19 test under original Medicare and these rates will likely set the benchmark for commercial reimbursement for the test itself.
However, strategies and processes for setting reimbursement rates between diagnostic laboratories and health plans and insurers vary according to the network-provider agreement, and the coverage mandate and public health emergency may shift negotiating power to laboratories.
Plans and providers should take immediate steps to register with the National Disaster Medical System to be able to receive reimbursement for serving uninsured patients, and should ensure that coverage, billing, and payment systems are calibrated to comply with the requirements of the act.
Plans and providers will also need to establish mechanisms to track such services to reconcile payments retroactively, if necessary, and for related services in the event coverage and reimbursement rules change in the coming weeks and months.
Providers and plans should anticipate potential additional regulatory requirements in the near future with respect to public disclosure and communication requirements, reporting requirements, and oversight and penalty provisions.
The act’s sweeping Covid-19 testing mandate reflects a rare federal action requiring coverage of a particular service across all forms of health coverage in the U.S., including those that are primarily regulated by states, plus coverage for the uninsured.
While the act limits the scope of this coverage mandate to the Covid-19 test and the visit during which the test is ordered, Congress’s willingness to issue sweeping mandates across all forms of coverage indicates that it or federal agencies may take similar further action in the future if particular services, such as respiratory therapy or vaccinations, become essential in light of this crisis.
Managed Care Contract Considerations
Providers should also consider the impact of this Covid-19 emergency period on their managed care contracts, including any value-based payment arrangements.
On March 22, CMS announced it is granting exceptions and extensions for Medicare quality reporting requirements, noting: “CMS recognizes that quality measure data collection and reporting for services furnished during this time period may not be reflective of their true level of performance on measures such as cost, readmissions, and patient experience during this time of emergency and seeks to hold organizations harmless for not submitting data during this period.”
Providers can ask plans for similar extensions and exceptions to reporting requirements.
Besides quality reporting requirements, the impact on shared savings and loss calculations should be addressed, perhaps even suspended or tolled during the emergency. One approach might be to use the periods before and after the emergency as a proxy or substitute for the period during the emergency. Financial and actuarial experts might weigh in on the implications of such approach.
Opioid Epidemic Ramifications
Recent federal actions have also addressed the intersection of the Covid-19 pandemic with the ongoing opioid public health emergency, but concurrent action is still needed in many states.
Federal law normally requires providers to conduct an in-person patient evaluation before prescribing controlled substances, including buprenorphine, the gold standard for opioid use disorder treatment. However, the Drug Enforcement Administration recently issued guidance to waive this requirement in light the Covid-19 pandemic. Unfortunately, some state laws continue to require an in-person patient evaluation before controlled substances can be prescribed.
These state laws are particularly concerning because the coronavirus pandemic may exacerbate the opioid epidemic. A disruption in the supply chain, coupled with the stressors associated with Covid-19, including social isolation, job loss, etc., are likely to result in the need for emergency medical treatment from health systems that are already overstressed.
This can be significantly mitigated by waiving state requirements for an in-person patient evaluation before prescribing controlled substances while implementing other safeguards (e.g., limiting the number of refills, remote check-ins via telemedicine, more frequent remote reassessments, etc.).
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Anjali N.C. Downs is a member of the firm in the Health Care and Life Sciences practice, in the Washington, DC, office of Epstein Becker Green. Her practice focuses on fraud and abuse and federal and state regulatory compliance within the health care industry.
Anjana D. Patel is a member of the firm in the Health Care and Life Sciences practice, in the Newark and New York offices of Epstein Becker Green. Her practice focuses on health care transactions and regulatory compliance counseling.
Jackie Selby is a member of the firm in the Health Care and Life Sciences practice of Epstein Becker Green. She counsels clients on third-party payor reimbursement and value-based payment methodologies.
Kevin J. Malone is a senior counsel in the Health Care and Life Sciences practice of Epstein Becker Green and a Strategic Advisor in the firm’s affiliated consulting practice EBG Advisors. Mr. Malone provides regulatory and strategic guidance related to health care financing law and policy at both the federal and state levels.
David Shillcutt is an associate in the Health Care and Life Sciences practice of Epstein Becker Green. He has deep experience in the areas of behavioral health, government and commercial reimbursement, and managed care.