Introduction

The COVID-19 pandemic has magnified pre-existing health disparities for justice-involved populations, with coronavirus infection rates among incarcerated populations higher than overall infection rates in nearly all states. Justice-involved individuals are disproportionately low-income and often have complex and/or chronic conditions, including behavioral health needs. Although the statutory inmate exclusion policy prohibits Medicaid from covering services provided during incarceration (except for inpatient services), states may take other steps to leverage Medicaid to improve continuity of care for justice-involved individuals.

In states that have adopted Medicaid expansion under the Affordable Care Act (ACA), many justice-involved individuals could be eligible for Medicaid coverage. One analysis of inmates incarcerated between 2009 and 2013 found that in the first full year after release from incarceration, only 55% of individuals had any reported earnings and among those with jobs, median earnings were only $10,090. In the 39 states (including DC) that have adopted Medicaid expansion under the Affordable Care Act, nearly all adults with incomes up to 138% of the federal poverty level (FPL) ($17,774 for an individual in 2021) are eligible for Medicaid; however, eligibility for adults remains very limited in the remaining 12 states.

The 2018 SUPPORT Act included provisions to promote continuity of care for justice-involved individuals, including prohibiting states from terminating Medicaid eligibility for incarcerated individuals under age 21 or former foster care youth up to age 26 and requiring eligibility redeterminations prior to release. The Biden Administration has also identified investments in justice-involved populations as a key Medicaid priority. Both the version of the proposed Build Back Better Act (BBBA) passed by the House of Representatives on November 19, 2021 and the version revised by the Senate Finance Committee on December 11, 2021 would partially lift the inmate exclusion policy by allowing federal Medicaid money to be used to pay for Medicaid-covered services 30 days prior to release for people who are incarcerated. This provision would be effective on the first day of the first fiscal year calendar quarter that begins two years after date of enactment (as soon as January 1, 2024). The BBBA would also temporarily close the coverage gap for individuals with incomes below poverty living in states that have not adopted Medicaid expansion by allowing these individuals to purchase federally subsidized coverage on the ACA Marketplace through 2025. This provision would impact coverage options for justice-involved individuals in non-expansion states, who may have new coverage options through the Marketplace upon release from incarceration.

At the state level, states may expand access to Medicaid coverage and care for justice-involved populations through a variety of mechanisms, including existing authorities as well as Section 1115 demonstration waivers. Using information from KFF’s 21^st annual Medicaid budget survey and ongoing analysis of Section 1115 waivers and other initiatives, this brief answers three key questions about state efforts to connect individuals to care before, upon, and following release from incarceration:

• What are state proposals to provide pre-release Medicaid coverage to incarcerated individuals?
• How are states coordinating care for incarcerated individuals upon release?
• How are states expanding access to care for justice-involved populations post-release?

What are state proposals to provide pre-release Medicaid coverage for incarcerated individuals?

Although the inmate exclusion policy limits Medicaid coverage available to incarcerated individuals, most states facilitate Medicaid enrollment prior to release. Current rules allow individuals to be enrolled in Medicaid while incarcerated, but the Medicaid inmate exclusion policy limits Medicaid reimbursement for incarcerated individuals to inpatient care provided at facilities that meet certain requirements, including hospitals. However, the majority of states facilitate access to Medicaid coverage by suspending rather than terminating coverage for enrollees who become incarcerated. Suspending eligibility expedites access to federal Medicaid funds if an individual receives inpatient care while incarcerated and also allows coverage to be active immediately upon release, which facilitates access to health care services in the community.

Some states are seeking Section 1115 waiver authority to partially waive the inmate exclusion and provide Medicaid coverage pre-release to certain groups of incarcerated individuals (Figure 1). Section 1115 waivers allow states to test new approaches in Medicaid that differ from federal rules if they promote the objectives of the Medicaid program.  To date, no state has received a waiver of the inmate exclusion policy (requests from DC and Illinois were denied by CMS under the Trump Administration).  Six states currently have Section 1115 requests (submitted in 2020 or 2021) pending CMS review that would waive the inmate exclusion to allow for coverage of certain Medicaid-eligible inmates prior to release (typically 30 or 90 days). These requests also vary in scope regarding eligible populations and benefit packages (see Figure 1 for details). Most states limit pre-release coverage to inmates with certain behavioral or physical health conditions and would also limit available benefits (typically to include services such as reentry support, enhanced case management, and behavioral health services). Vermont would not limit coverage to certain inmates and Utah and Vermont would provide a full State Plan benefit package for the Medicaid program for which the inmate is eligible.

How are states coordinating care for incarcerated individuals upon release?

An increasing number of states coordinate care for incarcerated Medicaid enrollees upon release through managed care organization (MCO) requirements and/or fee-for-service (FFS) initiatives.¹  Although the inmate exclusion policy limits Medicaid coverage available to incarcerated individuals, pre-release care coordination can promote continuity of care for Medicaid enrollees upon release by facilitating connections to care in the community. In response to KFF’s 2021 Medicaid budget survey, more than one-third of states that contract with MCOs (13 of 36) reported requirements for MCOs to provide care coordination services to at least some enrollees prior to release from incarceration, either in FY 2021 (seven states) or planned for FY 2022 (six states).^{2  3}  In comparison, just eight states reported current or planned MCO pre-release care coordination requirements in 2019. For example, states are requiring MCOs to:

• Target pre-release care coordination to incarcerated individuals with complex behavioral or other health needs. For example, Virginia plans to target pre-release care coordination services to high-need enrollees, including those with serious mental illness (SMI), substance use disorder (SUD), chronic conditions, HIV+, Hepatitis C, or who are pregnant. In Arizona, MCOs are contractually required to identify high-risk enrollees prior to release from incarceration and schedule post-release physical/behavioral health appointments for them. Pennsylvania requires MCOs to contract with the same provider used by the Department of Corrections to provide medication-assisted treatment (MAT) following release to ensure continuity of SUD care.

• Connect incarcerated enrollees to wraparound services in the community that target social needs. For example, Ohio requires MCOs to provide enrollees with complex needs with pre-release care coordination services, which may include assistance with social determinants of health (SDOH) (e.g., housing, transportation, food, or clothing.) In Louisiana, high-need MCO enrollees housed in state prison facilities are eligible for pre-release nurse case management. The MCOs are required to complete at least one pre-release case management session in the 60 days prior to release and to continue services post-release. The nurse case managers are responsible for linking members to any type of care they need as well as making referrals to wrap-around services (e.g., cell phones, Supplemental Nutrition Assistance Program benefits, Social Security benefits).
• Provide “in-reach” activities to connect incarcerated individuals with Medicaid prior to release. “In-reach” programs send MCO care managers into correctional facilities to enroll eligible individuals in Medicaid prior to release and connect them to care, such as by developing care plans or making connections to primary care providers. For example, Nevada reported an “in-reach” program to enroll incarcerated individuals in Medicaid prior to release, whereby MCOs go to prisons to explain their plans and value-added benefits.

Additionally, fourteen states (out of 45 responding) reported providing FFS care coordination to at least some individuals prior to release from incarceration, either in FY 2021 (eleven states) or planned for FY 2022 (three states).⁴  In comparison, eleven states reported current or planned FFS pre-release care coordination initiatives in 2019. Examples of FFS care coordination initiatives include:

• Connecticut facilitates access to medications post-release by providing pharmacy vouchers for up to a thirty-day supply of medication for individuals who applied for Medicaid prior to release, to be dispensed within five days of release.
• Oklahoma’s Office of Juvenile Affairs offers targeted case management to individuals under age 22, who are involuntarily in secure custody and meet Medicaid criteria for inpatient care.

How are state expanding access to care for justice-involved populations post-release?

States are also using Section 1115 waivers to target justice-involved enrollees living in the community with social supports, enhanced case management and other care (Exhibit 2). In addition to requests to expand pre-release coverage and initiatives coordinating care upon release (discussed earlier in this brief), states also have approved and pending Section 1115 waivers targeting services and supports to no-longer-incarcerated enrollees with previous justice involvement. Some states limit these services to justice-involved individuals with behavioral health or other needs. Services provided often focus on addressing SDOH through housing, employment, and other social supports (pending in Arkansas, Massachusetts, and Vermont; approved in Virginia). In addition to examples in Exhibit 2, many other states also provide targeted Medicaid services addressing SDOH to high-risk populations, which may include justice-involved populations.

Some states have employed Medicaid State Plan Amendments (SPAs) to target services and supports to justice-involved populations. For example, New York and Rhode Island both have SPAs establishing Health Home pilots focused on care coordination for justice-involved populations with SUD or other behavioral health needs. Michigan is developing a targeted case management program via SPA for individuals recently released from prison or jail.

Looking Ahead

The Biden Administration has identified equity and investments in whole-person care for justice-involved populations as critical strategic priorities for the Medicaid program. Similarly, in response to KFF’s 2021 Medicaid budget survey, many responding state Medicaid officials reported that health equity was a top priority. As people of color are disproportionately represented in the criminal justice system, ensuring this population’s access to Medicaid coverage and care is likely to be a major focus for states and the federal government in the future. If passed, the BBBA’s partial repeal of the Medicaid inmate exclusion policy would allow states to claim Medicaid matching funds to promote continuity of care for Medicaid-eligible incarcerated individuals prior to reentry to the community. The BBBA provision temporarily closing the coverage gap for individuals with incomes below poverty living in non-expansion states would also provide additional coverage options for the justice-involved population. Separately, it is unclear whether and to what extent CMS under the Biden Administration may approve the six pending Section 1115 requests to partially waive the inmate exclusion for Medicaid-eligible inmates prior to release; additional states may also submit similar requests.⁵  States may also continue to take advantage of other existing authorities—such as SPAs or MCO requirements—to promote access to care for justice-involved individuals.

1. Some initiatives reported by states require Section 1115 approval by CMS. Two states (Montana, New York) reported plans to seek waivers of the inmate exclusion policy. ↩︎
2. The seven states in FY 2021 are: Arizona, Colorado, Louisiana, New Hampshire, Nevada, Ohio and Pennsylvania. The six states in FY 2022 are: California, Kentucky, Massachusetts, Virginia, Washington, and West Virginia. A total of 36 states with MCOs responded to this question. Delaware, Minnesota, New Mexico, Rhode Island, and Texas did not respond. ↩︎
3. Some initiatives reported by states require Section 1115 approval by CMS. Two states (Montana, New York) reported plans to seek waivers of the inmate exclusion policy. ↩︎
4. The eleven states in FY 2021 are: Arkansas, California, Colorado, Connecticut, Louisiana, Michigan, New Hampshire, Nevada, Oklahoma, Pennsylvania and Washington. The three states in FY 2022 are: Maine, Montana, and West Virginia. A total of 46 states responded to this question. Delaware, Kentucky, Minnesota, New Mexico, and Rhode Island did not respond. ↩︎
5. For example, in response to the 2021 budget survey, New York indicated plans to seek a Section 1115 waiver requesting coverage for eligible inmates 30 days prior to release. ↩︎

Introduction

Paid family and medical leave and sick leave can help workers meet their personal and family health care needs, while also fulfilling work responsibilities. Access to paid leave is a particularly salient concern for women, who comprise nearly half of the nation’s workforce and who are often the primary caretaker for children and aging parents. Yet, many U.S. workers do not have access to paid leave time.

The federal Family and Medical Leave Act (FMLA) requires eligible employers to provide certain workers unpaid family leave; however, unlike nearly all other industrialized nations, the U.S. does not have national standards on paid family or sick leave, despite strong public support. Paid leave has garnered increasing attention among elected officials at the national and local level, particularly in light of the COVID-19 pandemic. Some temporary paid leave benefits programs were enacted as a result, though the majority of those have since expired. Some employers also report taking more permanent action on their paid leave policies during this time. Some efforts at the federal level have begun to gain momentum, including a provision of the 2020 Build Back Better Act that would create a national paid family and medical leave program. Additionally, the Healthy Families Act, which was introduced in 2019, which would require most U.S. employers to offer workers paid sick leave, though efforts to bring it to a vote have since stalled. Many states and localities have passed laws to expand access to paid leave to workers in their states. Employees not covered by these local laws must rely on voluntary employer policies, which can vary considerably in scope and compensation.

This fact sheet summarizes federal, state, and local policies on paid family and medical leave and paid sick leave and presents data from KFF Employer Health Benefits Surveys on the share of firms that offer workers these benefits.

Federal, State, and Local Policies on Sick and Family and Medical Leave

Sick Leave

According to the Bureau of Labor Statistics (BLS), eight in ten workers (79%) have access to paid sick leave through their employer in 2021; however, workers in certain occupations, part-time workers, and lower-wage workers are less likely to have access paid sick leave.

Proponents of a national paid sick leave mandate stress that workers should not be forced to choose between going to work sick and losing pay or their job, pointing to numerous studies on the benefits of paid sick leave, including ameliorating financial burdens, preventing the spread of illnesses (including coronavirus), increased use of preventive health care services, reduced on-the-job injuries, and fewer inappropriate emergency room visits. Opponents of a national paid sick mandate generally contend that a mandate is not necessary because many employers already provide these benefits or that it should be a voluntary benefit. They cite concerns about the financial implications for employers who would be required to provide this benefit, particularly for smaller businesses, and potential reductions in wages designed to offset those costs.

There is no federal requirement that employers offer paid leave to employees who are sick or need time off to care for a sick a family member. In 2020, the Families First Coronavirus Response Act (FFCRA) temporarily required employers with fewer than 500 workers and all public employers to provide up to two weeks of fully-paid sick leave to workers unable to work due to their own quarantine or symptoms of coronavirus. Those requirements expired at the end of 2020. In 2015, the Obama Administration issued an executive order that requires federal contractors to offer at least seven days of paid sick leave per year to their employees, on an accrual basis, which took effect in 2017. At the time of enactment, this applied to approximately 300,000 people working on federal contracts. Furthermore, government employees have generally had access to paid sick leave through employee benefits packages. Introduced in Congress annually since 2004 (with some modifications), the Healthy Families Act would require employers nationwide with 15 or more employees to provide at least one hour of earned paid sick leave for every 30 hours workers, up to 56 hours per year (7 days based on a 40-hour work week). Employees would be able to use sick leave for their own illness, to care for a sick family member, obtain medical care, or address needs resulting from domestic violence, sexual assault, or stalking, known as “safe time.” The Healthy Families Act has stalled in the House and Senate.

There has been more traction on paid sick leave policies at the state and local level. Since the first law was passed by voter initiative in 2006 in San Francisco, fourteen states plus D.C., and 20 other localities have passed laws requiring covered employers to provide eligible employees paid time off for their own illness or to care for sick children (Figure 1).¹  Two additional states have general paid leave laws that allow employees to use accrued leave for any reason, including illness. Eight states and eleven localities permit use of accrued paid sick leave for workplace closure or closure of the worker’s child’s school or childcare associated with a public health emergency. All state and all local paid sick leave laws except Pittsburgh, Oakland, and Berkeley permit use of accrued leave for “safe time.” The scope and generosity of paid sick leave laws vary. Most state and local laws have exemptions based on the size and type of employer and/or permit employers to impose certain worker eligibility requirements. Most laws also permit employers to impose a waiting period before new employees can use accrued leave, most often 90 days from the start of employment. Laws generally provide for accrual of 30-40 hours per year, though there is wide variation by policy, with lower accrual rates for smaller employers in many cases.

Family and Medical Leave

FMLA and Unpaid Family and Medical Leave

The most recent nationwide policy reform occurred in 1993, when the federal government passed the Family and Medical Leave Act (FMLA), giving eligible employees up to 12 weeks of unpaid, job-protected leave per year for their own serious health condition, to care for a seriously ill family member, and for the arrival of a new child, as well as up to 26 weeks to address needs related to a family member’s military deployment. The law applies to public agencies and private employers with 50 or more employees. The FMLA has provided job security to millions of workers who need to take time off work for a qualifying reason; however, just over half (56%) of the workforce is eligible for FMLA protections because small employers are exempt, and even in covered worksites, not all employees are eligible. As of 2018, 31 states and the District of Columbia have opted to expand job-protected leave benefits beyond FMLA’s minimum standards by expanding eligibility, the duration of leave, the definition of family members, or qualified reasons for taking leave in the private and/or public sector.

Paid Family and Medical Leave

BLS data found that less than one in four (23%) workers have access to paid family leave in 2021. Data on the share of workers with access to paid medical leave for a longer, serious illness are limited, but BLS also estimates that 40% of workers have access to short-term disability insurance.​

Proponents of a national paid family and medical program leave urge that it would provide employees with greater financial security when they must take an extended leave for medical reasons or to care for an ailing family member or new child. Research indicates that access to paid family and medical leave is associated with improved physical and mental health for new parents, decreased infant mortality, financial security for caregivers in the short- and long-term, and improved connections to the workforce, particularly for women, who are more likely than men to be caregivers for children and older adults. Opponents often cite concerns about the impact of new federal requirements on businesses, government overreach into the free market, increased taxes for businesses (should that be the funding mechanism), as well as the financial implications a new benefit would have on wages and employment.

There have been many attempts to enact a national paid leave policy, but no permanent federal legislation has ever been passed. In 2020, the Families First Coronavirus Response Act (FFCRA) temporarily required U.S. employers with fewer than 500 workers and all public employers to provide up to two weeks of partially paid leave to workers who needed time off work to care for someone in quarantine or if their child’s school or daycare had closed due to the pandemic; however, requirement expired at the end of 2020.  The Family and Medical Insurance Leave (FAMILY) Act, re-introduced in 117th Congress, if passed, would create a national insurance program to provide workers up to 12 weeks of their partial income for their own serious health condition or that of an immediate family member, and for the birth or placement of a child. The program would be funded by employee and employer payroll contributions. The Build Back Better Act, H.R. 5376, was adopted by the House of Representatives on November 19, 2021, with the support of President Biden, and is being considered through budget reconciliation. This broad package of health, social, and climate change policies includes a provision for 4-weeks of partially-paid family and medical leave for nearly every U.S. worker, funded largely through general revenues. As of December 2021, the Senate continues to debate the legislation and its passage remains uncertain.

There has been some progress on paid parental leave for federal workers. The Federal Employee Paid Leave Act, which took effect in October 2020, grants federal employees 12 weeks of paid leave following the birth or placement of a child. The policy, part of the National Defense Authorization Act for Fiscal Year 2020, applies to 2.1 million civilian workers employed by the federal government, though employees must have been in federal service for at least one year to be eligible and the legislation must be reauthorized for each fiscal year.

Nine states and D.C. have enacted paid family and medical leave laws in their jurisdictions (Figure 2), an increase from four states in 2016.^2 ,3 ,4  In November 2020, Colorado became the first state to enact paid family and medical leave through a ballot measure. These programs provide paid time off for a worker’s own serious illness, to care for a seriously ill family member, or to bond with a new child, with varying degrees of comprehensiveness. Three states also include time off for workers who need to address issues related to domestic violence, stalking, or sexual assault, known as “safe time.” One state permits use of paid leave for reasons associated with a public health emergency, effective Jan. 2022. Paid leave durations for an employee’s own serious medical condition range from 6 to 52 weeks per year and 4-12 weeks for family leave. Four states⁵  plus D.C. provide a 2–4-week extension for a worker’s own pregnancy-related health issues. Wage replacement ranges from 50% to 100% of regular pay, up to certain caps. Some states provide benefits on a sliding scale, with a higher percentage of wage replacement for lower-income workers. Coverage for public sector and self-employed workers varies by state. All have minimum earnings or employment length requirements to qualify, and some have 7-day unpaid waiting periods. Paid leave benefits are administered by the state or by employers with qualifying programs and are funded through employer and/or employee contributions.

Employer Health Benefits Survey Data

Paid Parental Leave

The 2019 KFF Employer Health Benefits Survey asked a nationally representative sample of non-federal public and private employers about the benefits they offer their employees. Overall, 25% of firms offer paid parental leave (either maternity, paternity, or both) to at least some employees for the birth or placement of a child. Thirty-five percent of workers are employed in firms that offer paid parental leave.

Paid parental leave offer rates vary by firm characteristics such as size and wage levels. Firms with 1,000 or more workers (35%) are more likely to offer paid parental leave than smaller firms (Figure 3). Among large firms (200 or more workers), firms with many higher-wage workers⁶  (41%) are more likely to offer paid parental leave than firms with few higher-wage workers (23%) (Figure 4).

Paid Sick Leave

The 2017 Employer Health Benefits Survey found that about two in three firms (68%) provide paid sick leave to their full-time workers (Figure 5). Large firms (94%) were more likely than small firms (3-199 workers) (67%) to provide paid sick leave to their full-time workers. While only a small fraction (1.7%) of firms in the U.S. are classified as large, they employ approximately 62% of the nation’s workforce. Between 2016 and 2017, the share of large firms offering paid sick leave to their full-time workers increased from 84% to 94%.

Paid leave benefits are far less prevalent for part-time workers and are more commonly offered by large firms. Over half of large firms (56%) provided paid sick leave to their part-time workers, compared to about a quarter (26%) of small firms. There is variation between different sizes of small and large firms in the provision of paid sick leave, for both full- and part-time workers.

Whether or not a firm offers paid sick leave also depends on firm characteristics. Among large firms, private for-profit firms (88%) are less likely to offer this benefit than private not-for-profit (99%) and public employers (100%) (Figure 6). Additionally, large firms with at least some union workers (98%) are more likely than firms with no union workers (92%) to provide paid sick leave to their full-time staff.

Among non-federal employees, 87% work in firms that offer paid sick leave to their full-time workers, and 50% work in firms that offer this benefit to part-time workers. The lower likelihood of paid sick leave for part-time workers has a disproportionate impact on women, who are more likely than men to hold part-time jobs. Women are also more likely than men to care for children when they are sick and have to stay home from school.

Conclusion

Benefits such as sick leave and paid family and medical leave can help workers meet their personal and family health care needs with greater financial security. This issue has gained new urgency during the COVID-19 pandemic as workers needed time off work to recover from the virus and to care for children and other family members who had fallen ill. Some Democratic lawmakers have introduced legislation that would create a national paid family and medical leave program and a national paid sick leave program; however, it remains to be seen whether Congress will take these bills up. President Biden has spoken about the need for supporting American families, and the Senate is currently debating budget reconciliation legislation that includes four weeks of paid family and medical leave for all U.S. workers, though the future of this provision, and the legislation as a whole, is uncertain. Short of that, the movement for paid leave will likely continue to be centered on state and local policies or those voluntarily adopted by employers or negotiated through union contracts. Given that most people will need time off during their working lives to care for a personal or family illness, or for a new child, this issue will continue to be a salient concern for working families across the country in the years to come.

1. The three local paid sick leave laws passed in TX are on hold due to a pending court challenge. NM's law takes effect July 1, 2022. CO's law for employers with fewer than 16 workers takes effect Jan. 1, 2022; the law is currently in effect for all other CO employers. Allegheny Co.’s law was enacted in Sept. 2021 and will take effect 90 days after the county posts compliance information for employers. All other state and local laws are in full effect. ↩︎
2. Laws take full effect Jan. 1, 2022, for CT; Jan. 1, 2023, for OR; and Jan. 1, 2024, for CO. All other state laws are in full effect. ↩︎
3. Hawaii has a state paid medical leave that provides up to 26 weeks of paid leave per year for an employee’s own serious health condition. Hawaii does not provide paid family leave. ↩︎
4. Two-thirds (10) of the fifteen state laws (including DC) were enacted just in the past five years. Five were passed between 2008 and 2015. ↩︎
5. WA, CT, OR, and CO. ↩︎
6. Firms with many higher-wage workers are those where at least 35% of workers earn more than the 75th percentile of national earnings ($63,000 in 2019). ↩︎

New 2020 data on U.S. health spending are now available on the Health Spending Explorer, an interactive tool that allows users to explore trends in health expenditures by federal and local governments, insurers, service providers, and individuals.

The data, which span from 1960 to 2020, are based on the just-released national health spending report from the federal government. The new data reflect the country experiencing a global pandemic which impacted health care spending and policymaking in 2020. Points of interest include:

• Overall, U.S. health care spending growth doubled from 4.3% in 2019; the 9.7% increase is the largest increase since 2002, driven by federal spending growth related to the pandemic and economic crisis
• Out-of-pocket spending fell for the first time since 2009 as Americans used the health care system less for non-COVID related health issues
• Public health spending skyrocketed by 113%
• Prescription drug spending grew at 3%

Users can build and download these and other custom charts, with options to filter data by type of service and source of funds.

The interactive is available on the Peterson-KFF Health System Tracker, a partnership between the Peterson Center on Healthcare and KFF that monitors the U.S. health system’s performance on key quality and cost measures.

If passed, the Build Back Better Act (BBBA) would include several provisions to improve maternal health, particularly for people of color. A new KFF Policy Watch explains the different provisions, their potential impact on parents and children, as well as the projected federal costs of these proposals. From expanding Medicaid postpartum coverage to establishing a national paid family leave policy, the BBBA could provide more support to states and community organizations working to improve maternal health.

Some key provisions include:

• Medicaid postpartum coverage extension: The BBBA would extend the postpartum period from 60 days to 12 months and would temporarily close the coverage gap.
• Maternal health homes: The BBBA would give states an increase in the federal match of 15 percentage points for two years if they deliver care through maternal health homes.
• Addressing inequities: The BBBA would authorize about $1billion in grants that would focus on improving maternal and infant health for people of color.
• Paid leave: Paid leave has been associated with improved mental and physical health for new parents and infants. The BBBA proposes four weeks of paid family and medical leave annually.

Maternal health is receiving new attention by policymakers in the U.S. who are trying to address pregnancy-related deaths, particularly the substantially higher rates among Black and American Indian and Alaska Native (AIAN) people compared to other racial and ethnic groups.

The Build Back Better Act (BBBA) includes several provisions aimed at improving maternal health, particularly for people of color. The debate over the BBBA comes at the same time that numerous other efforts to improve maternal health are under way, by the federal government as well as non-governmental organizations.

Medicaid Postpartum Coverage Extension

Increasing attention has centered on postpartum care, including recovery from childbirth, follow up on health complications, management of chronic conditions, access to family planning, and mental health care. However, for many birthing parents who live in states that have not expanded Medicaid under the ACA, coverage for this care is elusive and access to services is poor. The Medicaid program covers more than 40% of births nationally, including two-thirds among Black and AIAN people.

Federal law requires states to extend Medicaid eligibility to pregnant individuals with household incomes up to 138% of the federal poverty level (FPL) through 60 days postpartum. In non-expansion states, after the postpartum period, birthing parents lose pregnancy eligibility and must re-qualify as “parents of dependent children” to remain on Medicaid. However, many do not qualify and become uninsured because Medicaid income eligibility levels for parents are much lower than for pregnant people. Additionally, for many, their incomes are too low to qualify for subsidized private plans through the ACA Marketplace, which are only available to those with incomes above the poverty level. There were about 632,000 Medicaid births in non-expansion states in 2019 (Figure 1).

For example, in Alabama (Figure 2), a married mother with a newborn is in this coverage gap if she and her partner have an annual income above $3,952 (18% FPL). In contrast, their counterparts in expansion states can remain on Medicaid if their income is up to 138% FPL or qualify for Marketplace subsidies if it is higher. (Note: Currently postpartum people covered by Medicaid can remain on the program beyond 60 days because of a continuous enrollment requirement enacted in 2020 that lasts through the COVID public health emergency.)

The 2021 American Rescue Plan Act (ARPA) gave states the option to extend Medicaid postpartum coverage to 12 months for up to five years, which some states plan to adopt. The BBBA builds upon this by requiring all states to extend Medicaid postpartum coverage to 12 months permanently. Postpartum coverage transitions happen in all states, but more parents become uninsured in non-expansion states. The federal government estimates that mandatory postpartum extension would result in about 720,000 additional people remaining eligible through 12 months postpartum, with the number of continuously eligible increasing by 65 percentage points in non-expansion states and 38 percentage points in expansion states. The estimated cost of this provision is $1.2 billion over 10 years.

In addition to extending the postpartum period, the BBBA seeks to close the coverage gap temporarily by allowing people with incomes below 100% FPL who reside in non-expansion states and are ineligible for Medicaid to qualify for subsidies on the ACA Marketplace until 2025. This would provide a pathway to coverage for people before pregnancy, for all parents, and for those without children, at an estimated federal cost of $57 billion over 10 years.

Maternal Health Homes

The idea behind the maternal health home model is to provide financial incentives for providers to better coordinate and improve quality of care through the perinatal period. Some states have piloted maternal health homes and seen positive impacts on health outcomes. A provision of the BBBA would give states an increase in the federal match (FMAP) of 15 percentage points for two years if they deliver care through maternal health homes. The estimated federal cost is $1.0 billion over 10 years.

Improving Care and Addressing Inequities

The BBBA also seeks to strengthen care by authorizing approximately $1 billion in grants that would incorporate many elements of the MOMNIBUS, a legislative package that focuses on improving maternal and infant health for people of color. Funds would:

• Social Determinants of Health—Support community-based groups addressing issues that intersect with maternal health such as poverty, food, housing, and climate change.
• Workforce—Support universities, training programs, and other organizations to grow and diversify the perinatal workforce, including nurses, midwives, doulas, and substance use and mental health workers and to identify areas with shortages of maternity care workers.
• Delivery System—Enhance perinatal quality collaboratives that provide quality improvement tools for maternity providers; expand and incorporate use of technology and digital tools in maternity care; provide and strengthen anti-bias training to perinatal workers.
• Data and Research—Expand research and data collection on maternal health and inequities through academic institutions, federal surveys, state-level maternal mortality review committees, and the NIH.

Paid Leave

The BBBA also proposes to establish a national paid family and medical leave policy, which has been associated with mental and physical health and well-being for new parents and infants, workforce retention and gender equity. Paid leave provides an important foundation for postpartum health and child rearing and is available in every other industrialized nation. The BBBA proposes four weeks of paid family and medical leave annually to all workers for time off to welcome a child, recover from serious illness, or care for an ill family member, with an estimated federal cost over 10 years of approximately $205 billion. However, while paid leave was included in the bill passed by the House of Representatives, it may not pass in the Senate, as Senator Manchin of West Virginia has expressed opposition to this proposal.

Many states have already indicated an interest in expanding postpartum Medicaid coverage and addressing maternal health disparities. The BBBA could provide more supports to states and community organizations to invest further in improving maternal health.

On November 5, 2021, the Centers for Medicare and Medicaid Services (CMS) published regulations that established the first ever federal vaccination requirements for health care provider staff.¹  Drawing on its authority to establish patient health and safety standards, CMS’s regulations require health care providers that participate in the Medicare and/or Medicaid programs to ensure that their staff are fully vaccinated against COVID-19.²  The new rule applies to staff who provide any care, treatment, or other services for providers or patients, including contractors and volunteers. The first phase of the new regulations was to take effect on December 6, 2021, with staff required to have received their first vaccine dose or requested an exemption by that date.³  However, the new regulations have been put on hold by federal courts, and the pending lawsuits create uncertainty about whether the new requirements ultimately will be implemented.⁴  This issue brief examines the new regulations, explains the status of the pending litigation, and identifies issues to watch.

CMS says it decided to require health care staff to be vaccinated because its earlier efforts to simply encourage vaccination have been “insufficient” to protect patient health and safety. For example, CMS cites data showing that COVID-19 cases in nursing homes surged with the rise of the Delta variant. The nursing home staff vaccination rate is nearly 76% nationally as of November 2021, with substantial variation by region. CMS concluded that standard federal requirements across provider types are needed because the existing “patchwork” of state and employer requirements has not been enough to bring the pandemic under control in health care settings. CMS notes that the vaccines are safe and highly effective at preventing severe illness and death, and unvaccinated staff can strain the health care system by transmitting COVID-19 to patients and having to miss work if they are recovering from COVID-19 or quarantining after exposure. CMS acknowledges that some staff may leave their jobs because they do not want to receive the vaccine but cites examples of vaccine mandates adopted by health systems in Texas and Detroit and a long-term care parent corporation with 250 facilities as well as the New York state health care worker mandate, all of which resulted in high rates of compliance and few employee resignations.

In response to the new regulations, 26 states led by Republican officials filed four federal lawsuits challenging the new rules (Table 1). While the specific legal claims vary somewhat among the different cases, the states essentially raise four major arguments. First, the states challenge the process that CMS used to adopt the new rules, arguing that CMS did not have good cause to forgo public notice and comment under the Administrative Procedure Act (APA). The states also argue that CMS’s authority to establish health and safety regulations for Medicare and Medicaid providers does not allow it to adopt a “broad” vaccine requirement. And, they assert that CMS’s new rule is arbitrary and capricious under the APA because CMS did not appropriately consider factors such as potential staffing disruptions, the “limitations” of vaccines, and the “benefits” of natural immunity. Finally, the states contend that the new rules violate Constitutional principles about the appropriate balance between federal and state government power. For example, the states argue that the rules place “new” conditions on state receipt of federal funds in violation of the Constitution’s Spending Clause. The states also argue that the new rules improperly force states to administer federal regulations and unconstitutionally infringe on the states’ police powers to regulate for public health and safety.

Currently, CMS is unable to enforce the new rules nationwide, as a result of court orders, though circumstances may change as cases are appealed. To date, the 8^th Circuit Court of Appeals has ruled that a Missouri federal court’s decision preventing CMS from enforcing the new rules should remain in place while the appeal in that case is pending. Additionally, a federal court in Louisiana has blocked the new rules, while the 11^th Circuit Court of Appeals has affirmed a Florida federal court’s decision that the new regulations can be implemented while litigation is pending. (A fourth case in Texas federal court is on hold, pending further court action in the Louisiana case.) The Missouri court’s preliminary injunction blocking the new rules applies in the 10 states that brought that case. However, the Louisiana court went further, applying its preliminary injunction not only to the 14 states in the case before it but also to all other states (except the 10 states in the Missouri case). This means that the new rules are now on hold even in states that did not challenge them. The Louisiana decision also put the new rules on hold in Florida, despite the Florida court’s decision that the new rules should go into effect. However, as the 11^th Circuit points out in its review of the Florida decision, the Louisiana decision could be changed when it is reviewed by the 5^th Circuit on appeal. Specifically, the 11^th Circuit found that it is reasonably likely that the 5^th Circuit will conclude that the Louisiana court should not have applied its decision nationwide, even if the 5^th Circuit ultimately upholds the Louisiana court’s decision to block the new rules in the 14 states that brought the Louisiana case.

Court decisions in the lawsuits to date demonstrate opposing views about the scope of CMS’s authority to respond to the pandemic and what constitutes the public’s interest (Table 2). The 11^th Circuit’s decision defers to the agency’s expertise in the face of an unprecedented pandemic and notes that accepting Florida’s arguments in opposition would amount to substituting the state’s “views on epidemiology for the Secretary’s judgment about the best way to protect the public from infection.” By contrast, the Missouri and Louisiana courts fault the agency for not giving more credence to the arguments advanced by states that oppose CMS’s rule. When articulating the public’s interest in these issues, the 11^th Circuit emphasizes the public’s interest in slowing COVID-19 spread and protecting patients from preventable infection, while the Missouri and Louisiana decisions emphasize the public’s interest in being free from vaccine requirements. The Louisiana court’s characterization of the public interest is notable in light of its ultimate decision to block the rule in states that are not part of the litigation. The Louisiana court says that it entered a nationwide ruling because there are “unvaccinated healthcare workers in other states who also need protection,” though it does not discuss other aspects of the public interest, which may favor the rule.

The fate of CMS’s new rules may ultimately be determined by the Supreme Court. The preliminary injunctions blocking implementation of the rules issued by Missouri and Louisiana courts currently are awaiting review on appeal by the 8^th and 5^th Circuits, respectively. If one or both appeals courts affirms the preliminary injunction, that decision would conflict with the 11^th Circuit’s conclusion that the rule should not be blocked. A conflict among different appeals courts could increase the likelihood of the Supreme Court stepping in. As litigation to determine CMS’s authority to mandate health care provider vaccines as part of its pandemic response continues to play out, the emergence of the Omicron variant is raising new questions about the pandemic’s future course. This development likely will further challenge CMS as it seeks to adopt policies to bring the pandemic under control which ultimately could prove successful but may never be implemented if courts decide to limit the agency’s authority.

1. The new rule applies to Medicare and Medicaid providers that are directly regulated by CMS and therefore does not reach all Medicaid providers, such as certain home and community-based services (HCBS) providers. The rule applies to nursing homes, hospitals, outpatient rehab facilities, federally qualified health centers, rural health centers, and home health agencies, among other provider types. Residents and staff of other HCBS providers, such as group homes, assisted living facilities, and day habilitation programs, face increased risk of serious illness or death from COVID-19, similar to their counterparts in nursing homes. But, because states (and not CMS) license and regulate these providers, CMS has not required them to comply with the new rule. States or individual providers could adopt staff vaccination mandates, and providers may be subject to other rules such as the Occupational Safety and Health Administration requirement for large employers (which also has been put on hold by courts) or state or local requirements. ↩︎
2. CMS says that provider compliance with the new rule will be part of the existing oversight process through which state or federal inspectors review all Medicare and Medicaid program requirements. CMS envisions that inspectors will review facility policies and records and conduct staff interviews to verify vaccination status. CMS will provide guidance about oversight as well as penalties for noncompliance, which could include civil monetary penalties, denial of payment for new long-term care facility admissions, or termination of Medicare and/or Medicaid program participation. ↩︎
3. The new rule also provides that staff must be fully vaccinated by January 4, 2022, or have been granted an exemption (based on disability or sincere religious belief) or temporary delay (based on CDC clinical guidelines). Providers also must implement “additional precautions” to mitigate COVID-19 transmission and adopt contingency plans to address staff who are not fully vaccinated. ↩︎
4. Before the rule was put on hold by courts, CMS said that it would determine whether to make the new rule permanent based on public comments (due January 4, 2022) and the future course of the pandemic. The new rule is not tied to the duration of the COVID-19 public health emergency (PHE), and CMS expects that it will “remain relevant for some time beyond” the PHE end. Medicare interim final rules expire after three years unless they are finalized. ↩︎

Early studies suggest that while vaccine-induced immunity against COVID-19 may wane over time, booster shots help strengthen individuals’ level of protection against omicron and other variants. Findings from the KFF COVID-19 Vaccine Monitor show that just over half of U.S. adults have received a booster (16%) or are likely to get one (37%). This leaves about one in five who are either fully vaccinated but unlikely to get a booster (12%) or only partially vaccinated (6%), and one-quarter who still have not gotten a first shot, including 14% who say they will “definitely not” get vaccinated.

Partisans look very different on this measure. Three in four Democrats have already received a booster or are likely to get one compared to about half of independents and just over a third of Republicans. While omicron could change this calculation, the partisan divide that has emerged early into America’s booster campaign could increase pressure on health systems in heavily Republican areas if fewer individuals choose to get boosters that offer maximum protection against future waves of the virus.

Source

KFF COVID-19 Vaccine Monitor: November 2021

While people who are fully vaccinated against COVID-19 have a significantly reduced risk of severe illness, some hospitalizations and deaths have been reported among fully vaccinated people with breakthrough COVID-19 infections.

This brief describes the characteristics of fully vaccinated hospitalized patients who have COVID-19 breakthrough infections, in comparison to people who are not fully vaccinated and hospitalized with COVID-19. Compared to those who are unvaccinated, a small share (15%) of hospital admissions for COVID-19 between June and September involve people who were fully vaccinated against the disease.

It finds that age is highly correlated with breakthrough hospitalizations, and a greater share of people hospitalized with a breakthrough COVID-19 infection had a comorbidity than people hospitalized with COVID-19 who were not fully vaccinated. It also finds that fewer breakthrough COVID-19 hospitalizations included COVID-related respiratory complications or treatments, suggesting fully vaccinated patients hospitalized with breakthrough COVID-19 may have been more likely to be hospitalized for unrelated reasons.

The analysis examines data from the four-month period from Epic’s Cosmos research platform, which includes data for more than 120,000 hospitalizations with a COVID diagnosis during the four-month period. Patients are considered “fully vaccinated” if they received a dose of Johnson & Johnson vaccine or two doses of the Pfizer or Moderna vaccine at least two weeks before they were hospitalized, regardless of whether they were eligible for or received a booster shot.

The analysis is available on the Peterson-KFF Health System Tracker, an online information hub dedicated to monitoring and assessing the performance of the U.S. health system.