Introduction

On May 6, 2020, the Supreme Court will hear oral arguments for Trump v. Pennsylvania, and a related case, Little Sisters of the Poor v. Pennsylvania, marking the third round of litigation involving the Affordable Care Act’s regulations on contraceptive coverage that has reached the high court. In these cases, it is Pennsylvania and New Jersey, not religious employers, that are leading the challenge to the Trump Administration’s contraceptive coverage regulations under the Affordable Care Act (ACA) giving employers wide latitude to claim an exemption from the requirement. In previous cases, the Supreme Court rulings tried to balance the beliefs of religious employers with women’s entitlement to receive no-cost contraceptive coverage. Since the Court last considered these regulations, Justices Gorsuch and Kavanaugh have joined the Court forming a solid conservative majority that may influence the outcome of these cases. This brief explains how the new regulations issued by the Trump Administration would change the contraceptive coverage requirement for employers and affect women’s coverage, the legal positions for challenging and defending these regulations, the potential rulings, and the broader ramifications.

Background

The ACA is the first law to set preventive coverage requirements for health insurance across all markets – individual, small group, large group and self-insured plans. As part of these preventive requirements, there is a provision that charges the Health Resources and Services Administration (HRSA) to identify preventive services for women. Starting in 2012, HRSA required all new private plans were to cover, without cost-sharing, the full range of contraceptive services and supplies approved by the Food and Drug Administration (FDA) as prescribed for women. In 2018, an estimated 43.3 million women ages 15 to 49 had employer sponsored health insurance. The ACA contraceptive coverage rules implementing this recommendation have evolved through litigation and new regulations.

While the cases currently before the Supreme Court involve the Trump Administration’s regulations published in November 2018, at the core of these cases is an unresolved issue from the previous litigation. Although the Supreme Court has previously reviewed two cases involving challenges from religious employers to the ACA contraceptive coverage requirement, Burwell v. Hobby Lobby and Zubik v. Burwell, the Court never decided whether the Obama Administration’s regulations violate the religious rights of religiously affiliated nonprofit employers. While PA and NJ contend there is no legal justification for the Trump Administration‘s regulations expanding employer exemptions, the Trump Administration and the LSOP maintain that the accommodation crafted by the Obama Administration violates the Religious Freedom Restoration Act (RFRA) and that the Supreme Court needs to address this undecided issue from Zubik v. Burwell.

RFRA was enacted in 1993 to protect “persons” from generally applicable laws that burden their free exercise of religion. The employers that challenged the Obama regulations asserted that the regulations violated RFRA. When an individual with a sincerely held religious belief challenges a law that “substantially burdens” their exercise of religion, the Act requires the government to show the law furthers a “compelling interest” in the “least restrictive means.” In the Burwell v. Hobby Lobby decision, the Supreme Court ruled that the “closely held” for-profit corporations had religious beliefs that were being substantially burdened by the contraceptive coverage requirement. In the Court’s Hobby Lobby ruling, Justice Alito, wrote about the accommodation as a “less restrictive means,” to provide contraceptive coverage. The Court, however, did not decide whether the accommodation is lawful: “We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims. At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.”

In May 2016, with only eight justices, the Supreme Court remanded Zubik v. Burwell, sending seven cases brought by religious nonprofits objecting to the contraceptive coverage accommodation back to the respective district Courts of Appeal. The Supreme Court instructed the parties to work together to “arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans receive full and equal health coverage, including contraceptive coverage.” The Court also stated: “Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans ‘obtain, without cost, the full range of FDA approved contraceptives.’”

However, the Trump Administration has stated that they do not believe it is feasible to resolve the religious objection of employers while still ensuring that the affected women receive full and equal health coverage that includes contraceptive coverage. Instead, the Administration suggests women could receive contraceptive services through Title X clinics or other governmental programs. However, most women who lose employer coverage for contraceptives will likely not qualify for free Title X services designed to offer services to low-income women, and over 25% of clinics have recently dropped out of Title X program in response to other Trump Administration regulations.

In October 2017, one week after issuing interim final regulations to expand the exemptions to the contraceptive requirement, the Trump Administration negotiated settlements with many of the nonprofit employers with ongoing legal challenges to the Obama contraceptive coverage regulations. The settlements give these employers permission to exclude contraceptive coverage from their plans, and in some case paid for some of the organizations’ legal fees.

After issuing interim final rules without notice or comment, the Trump Administration issued final regulations in November 2018 greatly expanding the types of employers that may be exempt from the ACA‘s contraceptive coverage requirement (Figure 1). The Trump Administration’s final regulations greatly expand eligibility for the exemption to all nonprofit and closely-held for-profit employers with objections to contraceptive coverage based on religious beliefs or moral convictions, including private institutions of higher education that issue student health plans. In addition, publicly traded for-profit companies with objections based on religious beliefs also qualify for an exemption. There is no guaranteed right of contraceptive coverage for their female employees and dependents or students.

The accommodation developed by the Obama Administration is broadened to be available to any employer now eligible for the exemption as well as employers that previously qualified for the accommodation. The Trump Administration argues that these new rules will have only a limited impact on the number of women losing contraceptive coverage. How many employers who were not eligible for either the exemption or accommodation under the Obama-era regulations will now seek a full exemption is unknown, as is the number of employers previously utilizing the accommodation who will now opt for an exemption (resulting in the loss of contraceptive coverage for their employees and dependents). In the preamble to the regulations, Health and Human Services (HHS) estimates between 70,500 and 126,400 women would lose contraceptive coverage, and that the cost of losing contraception is $584 per woman annually and therefore the financial transfer effects attributable to these final rules on those women would be between approximately $41.2 million and $73.8 million.

Legal Basis of the Lawsuit

Unlike the previous litigation challenging the Obama Administration’s regulations, the plaintiff states are not claiming the regulations violate RFRA, however the Trump Administration is using RFRA to defend their authority to issue the regulations. The States challenging the regulations contend that thousands of women would be without birth control coverage due to these rules and may turn to state-funded programs to receive contraception and the states will incur additional healthcare costs due to an increase in unintended pregnancies. The states are arguing that they also “possess strong interests in protecting the medical and economic health or their residents, minimizing unintended pregnancies and abortions, and ensuring that all of their residents—both men and women— are free and able to fully participate in the workforce, maximize their social and economic status, and contribute to their economies without facing discrimination on the basis of sex.” They argue federal agencies lack the authority either from RFRA or the ACA to create these new expanded exemptions, and that the regulations violate the civil rights protections in the ACA prohibiting discrimination on the basis of sex and other protected categories in most healthcare programs and categories.

In this case, the religious employers and the Trump Administration are aligned, and they contend that RFRA at least authorizes, if not requires, the federal agencies to create the broader religious exemptions. They also maintain that the ACA authorizes the new moral exemptions. In the preamble to the regulations, the Trump Administration explains that the moral exemption is necessary to “protect sincerely held moral objections of certain entities and individuals. The rules, thus, minimize the burdens imposed on their moral beliefs, with regard to the discretionary requirement that health plans cover certain contraceptive services with no cost-sharing, which was created by HHS through guidance promulgated by the Health Resources and Services.” Both the Administration and the LSOP contend that the ACA grants HRSA, and in turn the Agencies, significant discretion to shape the content and scope of any preventive services guidelines adopted pursuant to the preventive services provisions of the ACA, and this discretion includes shaping which entities must include coverage for all the preventive services. The Administration further explains in the preamble to the regulations, “Congress’s grant of discretion in section 2713(a)(4), and the lack of a mandate that contraceptives be covered or that they be covered without any exemptions or exceptions, lead the Departments to conclude that we are legally authorized to exempt certain entities or plans from a contraceptive Mandate if HRSA decides to otherwise include contraceptives in its Guidelines.” The Administration counters the states’ argument that the regulations discriminate on the basis on sex by stating that “any distinctions in coverage among women are not premised on sex, but on the existence of a religious or moral objection to facilitating the provision of contraceptives. Thus, the Rules do not violate Title VII’s prohibition on sex-based disparate treatment.”

The other major issues in dispute include whether the Trump Administration violated the Administrative Procedure Act, and whether a national injunction blocking implementation of the regulations for the whole country is the appropriate remedy or whether the remedy should be limited to the plaintiff states (Table 1).

One of the controversies is whether the Little Sister of the Poor (LSOP) has legal standing to appeal this case. In May 2018, with the Trump Administration no longer defending the Obama regulations, the LSOP obtained a permanent injunction from the federal district court of Colorado blocking government enforcement of the Obama regulations against the LSOP. As result, the Third Circuit found that the LSOP no longer have an injury and therefore denied appellate standing to the LSOP. The LSOP maintain they could be injured if they switch health plans, and the broad exemptions allowed by the Trump regulations are not implemented (Box 1).

Potential Rulings and Broader Ramifications

If the Court does not hold that the violations of the APA are consequential, federal agencies may bypass notice and comment periods in the future. If the court rules that the Trump Administration violated the APA, then the Administration would need to start over by properly posting proposed regulations with notice and a public comment period. With upcoming election in November, there is a possibility the rulemaking would not be complete while President Trump is in office. If the Obama regulations remain in effect, the Little Sisters of the Poor and other religious nonprofits would undoubtedly continue to challenge these regulations, but women would still have access to contraceptive coverage regardless of their employers’ religious or moral beliefs.

Given the current conservative majority, the Court may rule that RFRA requires the broad religious exemptions. However, RFRA does not include moral exemptions, and it is therefore less clear how the Court will view the moral exemptions. If the Court allows Trump Administration’s new regulation for religious exemptions to go into effect, it is unknown how many of employers and colleges will opt for the exemption, leaving their students, employees and dependents without no-cost coverage for the full range of contraceptive methods. For some women, choice of contraceptive methods may be limited by cost, placing some of the most effective yet costly methods out of financial reach. In addition, the decision may encourage similar broad religious exemptions regarding coverage for other services without regard to harm to people who are guaranteed these services under the ACA. The Trump Administration is likely to publish final regulations that remove protections for LGBTQ patients from discrimination granted by the anti-discrimination provisions of Section 1557 of the ACA. These new regulations will likely be challenged, and the Supreme Court’s decision in the current contraceptive coverage case could support or rebuke HHS’s authority to create these sweeping changes.

Unless the Court rules in favor of the States, it does not have to issue a decision about the scope of the injunction ordered by the district court and upheld by the Third Circuit Court of Appeals. However, even if the Court rules in favor of the Trump Administration, it may want to weigh in on the practice of district courts issuing national injunctions for federal policies. This practice has become more common in the last decade, and is controversial. Proponents of national injunctions argue they are necessary to ensure the law is uniform throughout the country. Critics of nationwide injunctions contend they are overly broad, and do not give the opportunity for other courts to decide the issue for their jurisdiction. In a case brought by California and four other states challenging the Trump Administration’s interim final regulations for contraceptive coverage, the 9^th Circuit Court of Appeals limited the scope of the preliminary injunction issued by the district court to plaintiff states. Attorney General Barr has called for an end to nationwide injunctions. Justice Thomas wrote in a concurring opinion in Trump v. Hawaii in 2019 that nationwide injunction are “legally and historically dubious.” If the Court issues a ruling limiting the scope of injunctions, the decision could impact other cases challenging federal policies and result in federal policies becoming effective in some states, while being blocked in other states.

Conclusion

The Supreme Court will likely publish its ruling in late June 2020. The Obama administration tried to accommodate employers with religious objections and still guarantee women full contraceptive coverage without cost sharing. In contrast, the Trump Administration has acknowledged they do not think this is possible, and have prioritized broad exemptions for employers over women’s coverage. While the case once again pits the rights of women to receive health insurance that includes no-cost coverage for contraceptive services and supplies against those of employers who hold religious and moral objections to contraceptives, the ruling could have implications that go far beyond birth control coverage for thousands of women. The decision could also pave the way for broad exemptions to other laws protecting LGBTQ people, people living with HIV, and others from discrimination in the work place, in health care settings, in housing, and other areas of society. The contraceptive coverage provision of the ACA has been one of the most litigated aspects of the law. This could be final case or if the Court does not allow these broad exemptions, employers with religious or moral objections will likely continue to challenge the regulations.

We recently wrote about the scattershot approach states and communities took toward implementing social distancing measures, particularly stay-at-home orders.  While some moved relatively early – and there are indications that this is paying off– others only implemented stay-at-home orders after the White House announced federal social distancing guidelines would extend through April. However, with those guidelines now expired, and the release of the White House’s “Guidelines for Opening Up America Again”, a growing number of states have begun to ease social distancing requirements, even without clear indications that they are successfully controlling their outbreaks. Here we review which states have done so, the approaches taken, and look at several key metrics for assessing their readiness for reopening.

A Range of Approaches

As of May 4, more than half of the states (27) had loosened social distancing restrictions in some way (See Table 1), and others have announced changes that will take effect in the coming weeks. In some cases, these restrictions were only in place for a relatively short period of time, such as in South Carolina (13 days) and Georgia (21 days), whereas in others, they were in place for much longer, such as in Indiana (41 days). As of this writing, the longest across all states, including those that have not begun lifting restrictions, is 48 (California).

In addition, states have taken very different approaches to easing social distancing measures. Some are making small and incremental changes, phasing them in over a period of time, while others are adopting broad changes all at once (see Table 2). For example:

• On one end of the spectrum, Vermont is keeping its stay at home order in place, but relaxing rules for outdoor and construction work as well as services provided by single workers, such as realtors, attorneys, etc. as long as these businesses can meet strict social distancing standards. In two weeks, the Governor will evaluate whether these rules can be expanded to more businesses.
• At the other end of the spectrum, Tennessee rescinded its stay at home order and allows most employees to return to work, with the exception of personal services and entertainment businesses, and permits restaurants to reopen to limited dine-in service. Businesses must continue to meet CDC guidelines and restaurants can only operate at 50% capacity, yet these limits are less restrictive than other states.
• In between, Georgia has retained its stay at home order for high risk groups and its limits on social gatherings of more than 10 people, but has opened many businesses, including personal care service and recreational businesses.

Assessing Key Metrics

While there is no single metric for assessing when it is safe to begin easing social distancing measures, there are several that, when used together, can provide states with needed guidance. These include two metrics in the White House Guidelines, considered “gating criteria” that, with other criteria, should be satisfied before considering moving to a phased comeback:

• Downward trajectory of documented cases within a 14-day period; or
• Downward trajectory of positive tests as a percent of total tests within a 14-day period (while testing volume remains flat or is increasing). A lower positivity rate suggests that a broader group of people without symptoms is being tested, rather than tests being concentrated among people who are already severely ill. The World Health Organization recommends that the positivity rate be at or below 10%. In South Korea, New Zealand, and Australia, for example, three countries that have seen a sustained reduction in daily cases and successfully controlled their outbreaks, the positivity rate is below 2%.

Using these metrics, we assessed where the 27 states fall (see Table 3):

• Trajectory of Cases: Over the past 14 days (using a 7-day rolling average of the percent change in daily cases, to smooth daily fluctuations), 13 of the 27 states show a decrease, while 14 continue to see new cases grow, including Colorado and Tennessee.
• Trajectory of Positive Tests: Over the past 14 days (using a 7-day rolling average of the percent change in positivity rate), 19 of the 27 states show a decrease, while 8 states show an increase.
• Current Positivity Rate: The current positivity rate ranges from 0.4% in Alaska to 22.5% in Iowa. It is above 10% in 12 of the 27 states, including above 20% in three states – Colorado, Iowa, and Nebraska.

Taken together, only nine of the 27 states – Alabama, Alaska, Florida, Idaho, Missouri, Montana, Oklahoma, Vermont, and West Virginia – meet the metrics examined here.

However, few of the states have sufficient testing capacity to consider reopening. While most of the 27 states increased testing in the past week, in four states, Mississippi, South Dakota, Utah, and Vermont, the number of tests conducted in the past week fell relative to the week before. The three states with positivity rates above 20%–Colorado, Iowa, and Nebraska—each increased the number of tests conducted by 50% or more in the past week. The share of the population tested in the past week ranges from 0.2% in Montana, Maine, and South Carolina to over 1% in North Dakota, Alaska and West Virginia. Our recent review of testing benchmarks suggests 0.9% is the minimum threshold, but still well below most targets for the share of the population that should be tested each week.

If states could ramp up testing substantially and other criteria are met (such as sufficient hospital capacity and contact tracing capabilities – see, for example, COVIDActNow, Center for American Progress, and AEI), some may be able to consider easing some social distancing requirements, but most still fall short.

A Difficult Balance

In the face of the devastating economic effects the coronavirus is having on the U.S. economy, the pressure for states to ease social distancing restrictions is building. States are making different judgments in balancing the desire to increase economic activity by loosening these rules against the risks to the public’s health of moving too quickly. Just as states’ scattershot approach to stay-at-home orders raised concerns about ongoing community transmission in the U.S., recent movements by some states to ease restrictions similarly raise concerns about new outbreaks. While some states appear to be taking an incremental approach to reopening, others are more aggressive. An assessment of key metrics shows a mixed picture, with only nine of the 27 states meeting the metrics showing a downward trajectory, which still represent just a subset of factors that should be considered for reopening.

As states begin to loosen social distancing requirements, broader testing coupled with enhanced contact tracing and the ability to isolate those who contract the virus will be needed to contain localized outbreaks. Ongoing assessment of key metrics will be important to inform future state action, including if and when the reinstatement of some or all social distancing measures is needed.

Every Thursday morning the U.S. Department of Labor releases the latest figures on the number of Americans who have filed for unemployment benefits. Last week found another 3.8 million people filing for unemployment, bringing the total initial jobless claims over 30 million adults in the past 6 weeks. While the weekly unemployment claims are staggering, an equally troubling report was released at the end of April by the Congressional Budget Office (CBO) projecting the unemployment rate through the summer will average close to 15 percent (the unemployment rate prior to the coronavirus outbreak was around 4 percent nationwide). The CBO report projects the U.S. labor market will improve after the third quarter, largely driven by a decrease in social distancing restrictions and businesses opening up, but the unemployment rate is expected to stay above 10 percent throughout 2021. This means many of those workers who have been laid off or lost jobs due to the coronavirus outbreak may not be going back to work this year.

The latest KFF Health Tracking Poll finds 55% of those who were employed either full-time or part-time on February 1, 2020 report that they have either lost their job, been furloughed, or had their salary or hours reduced (Note. the CBO report projects about total unemployment not about those who experienced partial job loss including hours or salary reduction).

This includes two-thirds of those in households earning less than $40,000 annually (65%) or between $40,000 and $75,000 (66%). Four in ten of those earning $75,000 or more annually (41%) say they have lost their job or had their income reduced due to the coronavirus outbreak.

Most of those who report losing their jobs or having their hours reduced were hourly workers (62%), and this group was also more likely than those who didn’t experience a loss of job or hours to say they were part-time workers (22% vs. 9%).

Yet contrary to the CBO projections, the vast majority of these individuals (83%) believe they will get their previous hours, income, or job back within six months, including at least eight in ten across all three income groups (less than $40,000 annually, between $40,000 and $75,000, and $75,000 or more).

In addition, among those who have lost their jobs entirely (26% of those who were employed on February 1^st), most say that while their former place of employment is closed, it is only closed temporarily (56%). Few (2%) say their business has been closed permanently.

While it is unknown how many businesses may close permanently as a result of the economic impact of the coronavirus outbreak or how long these workers will be without employment or working reduced hours, these workers are already reporting disproportionate impacts on both their economic situation and their mental health and well-being compared to those who were employed as of February 1^st and haven’t lost a job, been laid off, or had hours reduced. Two-thirds (65%) of those who lost their job or had income impacted say that worry or stress related to coronavirus has had at least one adverse effect on their mental health or wellbeing such as loss of sleep or appetite, and half say they have fallen behind on household bills or had trouble affording household expenses (48%) or that they are worried about being able to afford these expenses in the future (47%).

While those who have lost their jobs or had their employment impacted by coronavirus are incredibly optimistic about how quickly they will regain their previous employment or income, there is a lot of uncertainty about when the U.S. economy will come back. While workers expect to go back to work soon, economic experts suggest that the economic impact of COVID-19, and the personal impact that a loss of employment has on workers and their families, could last much longer than many workers may think. Depending on how the economic situation continues into the fall, these former workers may be entering the voting booths (or voting by mail which is more likely) with their expectations about a return to normal work-life being largely unmet. It is too early to tell who they will hold responsible or blame for their circumstance, but their economic hardships will most certainly be on their minds.

Every Friday we’ll recap our new coronavirus policy analysis, polling, and journalism. Total cases in the U.S. surpassed 1 million this week. Since last Thursday, actions to ease social distancing requirements went into effect in 14 states: Alabama, Alaska, Colorado, Georgia, Michigan, Minnesota, Mississippi, Missouri, Montana, Oklahoma, South Carolina, Tennessee, Vermont, and Wisconsin.

Here are the latest coronavirus stats from KFF’s tracking resources:

Global Cases and Deaths: This week, total cases worldwide passed 3 million – with approximately 549,000 new cases added between April 23 and April 30. There were approximately 40,000 new confirmed deaths worldwide between April 23 and April 30.

U.S. Cases and Deaths: There have been over 1 million cases in the U.S. There were approximately 200,000 new cases and 13,000 deaths in the United States between April 23 and April 30.

U.S. Tests: There have been approximately 6 million total COVID-19 tests with results in the United States — with over 1.5 million added since last Thursday. 17% of the total tests were positive. There were 19 tests with results per 1,000 people. Our new dashboard highlights the variability by state.

Adults at Higher Risk of Serious Illness if Infected with Coronavirus: 38% of all U.S. adults are at risk of serious illness if infected with coronavirus (92,560,223 total) due to their age (65 and over) or pre-existing medical condition. Of those at higher risk, 45% are at increased risk of serious illness if infected with coronavirus due to their existing medical condition such as such as heart disease, diabetes, lung disease, uncontrolled asthma or obesity.

States Easing Social Distancing Measures: 14 states – Alabama, Alaska, Colorado, Georgia, Michigan, Minnesota, Mississippi, Missouri, Montana, Oklahoma, South Carolina, Tennessee, Vermont, and Wisconsin – have eased some social distancing measures since Thursday, 4/23 Our tracker is updated daily as the quickly changing state responses go into effect. More will go into effect today.

Statewide Actions to Mitigate the Spread of COVID-19 (includes Washington D.C.):

• Stay At Home Order: 36 statewide orders, 3 orders for high-risk groups only, other action in 1 state, expired orders in 5 states, no action in 6 states
• Mandatory Quarantine for Travelers: 14 orders for all travelers, 1 order for all air travelers, 6 for travelers coming from certain states, other action in 1 state, no action in 29 states
• Non-Essential Business Closures: 24 orders to close all non-essential businesses; 4 orders to close all non-essential retail businesses, 14 to close certain non-essential businesses, open with reduced capacity in 3 states, no action in 6 states
• Large Gatherings Ban: All gatherings prohibited in 15 states, gatherings of 10+ people prohibited in 25 states, gatherings of 20+ people in 1 state, other actions in 4 states, expired bans in 3 states, no action in 3 states
• State-Mandated School Closures: Closed in 11 states, closed for school year in 33 states, recommended closure in 1 state, recommended closure for school year in 6 states
• Bar/Restaurant Limits: Closed except takeout/delivery in 44 states, limited on-site service in 5 states, other action in 1 state, no action in 1 state
• Primary Election Postponement: Postponement in 14 states, cancelled in 1 state, no postponement in 36 states
• Emergency Declaration: There are emergency declarations in all states and D.C.

State COVID-19 Health Policy Actions (Includes Washington D.C.)

• Waive Cost Sharing for COVID-19 Treatment: 3 states require, state-insurer agreement in 3 states; no action in 45 states
• Free Cost Vaccine When Available: 9 states require, state-insurer agreement in 1 state, no action in 41 states
• States Requires Waiver of Prior Authorization Requirements: For COVID-19 testing only in 5 states, for COVID-19 testing and treatment in 6 states, no action in 40 states
• Early Prescription Refills: State requires in 18 states, no action in 33 states
• Premium Payment Grace Period: Grace period extended for all policies in 11 states, grace period extended for COVID-19 diagnosis/impacts only in 5 states, no action in 35 states
• Marketplace Special Enrollment Period: Marketplace special enrollment period in 12 states, no special enrollment period in 39 states
• Paid Sick Leave: 13 states enacted, 2 proposed, no action in 36 states

Approved Medicaid State Actions to Address COVID-19 (Includes Washington D.C.)

• Approved Section 1115 Waivers to Address COVID-19: 1 state has an approved waiver
• Approved Section 1135 Waivers: 51 states have approved waivers
• Approved 1915 (c) Appendix K Waivers: 37 states have approved waivers
• Approved State Plan Amendments (SPAs): 23 states have temporary changes approved under Medicaid or CHIP disaster relief SPAs, 1 state has an approved traditional SPA

• Other State-Reported Medicaid Administrative Actions: 51 states report taking other administrative actions in their Medicaid programs to address COVID-19

This week’s blog posts in Coronavirus Policy Watch:   

• Taking Stock of Essential Workers (Blog)
• States are Shifting How They Cover Prescription Drugs in Response to COVID-19 (Blog)
• Public Attitudes Towards the Coronavirus Outbreak in Highly Affected Counties (Blog)

The latest KFF COVID-19 resources:

COVID-19 in the United States

• COVID-19 in Rural America – Is there cause for concern? (Issue Brief, News Release)
• Double Jeopardy: Low Wage Workers at Risk for Health and Financial Implications of COVID-19 (Issue Brief)
• Public Attitudes Towards the Coronavirus Outbreak in Highly Affected Counties (Blog Post)
• Data Note: Requirements for Nursing Homes and Assisted Living Facilities in Response to COVID-19 Vary Across States (Issue Brief)
• Updated: State Action to Limit Abortion Access During the COVID-19 Pandemic (Issue Brief)

Global COVID-19 Response

• Archived Recording: KFF and Global Health Council Present a Virtual Town Hall on COVID-19 Response in Low- and Middle-Income Countries (Archived Recording)
• Pandemic, Global Warming Can Spur Nations To ‘Rebuild Our World For The Better,’ U.N. SG Says In Climate Dialogue Address (KFF Daily Global Health Policy Report)

Trackers and Tools

• COVID-19 Coronavirus Tracker – Updated May 1, 2020 (Tracker)
• COVID-19 and Related State Data (State Health Facts)
• State Data and Policy Actions to Address Coronavirus – Updated April 30, 2020 (Issue Brief)
  • This tracker has been updated with a new data dashboard that integrates data on cases, deaths, testing, hospitalizations, and race/ethnicity into a single resource. The tracker also includes new data on cases in long-term care facilities
• Medicaid Emergency Authority Tracker: Approved State Actions to Address COVID-19 – Updated April 30, 2020 (Issue Brief)

The latest KHN COVID-19 stories:

• Trump’s Claim That U.S. Tested More Than All Countries Combined Is ‘Pants On Fire’ Wrong (KHN)
• Do-It-Yourself Cheek Swab Tested As Next Best Thing To Detect Coronavirus (KHN)
• California To Widen Pipeline Of Psychiatric Nurse Practitioners (KHN, Chico Enterprise-Record)
• Lost On The Frontline (KHN, The Guardian)
• KHN’s ‘What The Health?’: SCOTUS Decides An ACA Case. No, Not THAT Case. (Podcast)
• Free Clinics Try To Fill Gaps As COVID Sweeps Away Job-Based Insurance (KHN)
• ‘An Arm And A Leg’: If Insurer Bills You For COVID Testing, Talk — And Maybe Tweet — It Out (Podcast)
• As Coronavirus Strikes, Crucial Data In Electronic Health Records Hard To Harvest (KHN, Fortune)
• Trump Says N95 Masks Can Be Sterilized For Reuse. Only In A Pinch, Experts Warn. (KHN)
• COVID Tests Are Free, Except When They’re Not (KHN, NPR)
• Amid Coronavirus Distress, Wealthy Hospitals Hoard Millions (KHN, Washington Post)
• Telehealth Will Be Free, No Copays, They Said. But Angry Patients Are Getting Billed. (KHN, NPR)
• Health Insurers Prosper As COVID-19 Deflates Demand For Elective Treatments (KHN, Los Angeles Times)
• Widely Used Surgical Masks Are Putting Health Care Workers At Serious Risk (KHN, The Guardian)
• Lost On The Frontline (KHN, The Guardian)
• Lawmaker Pushing Mental Health Reform: It’s ‘More Needed Than Ever’ (KHN)
• Consumer Beware: Coronavirus Antibody Tests Are Still A Work In Progress (KHN)
• The Challenges Of Keeping Young Adults Safe During The Pandemic (KHN)
• Fear Of Coronavirus Propels Some Smokers To Quit (CHL)

On April 24, 2020, the Paycheck Protection Program and Health Care Enhancement Act was signed into law, marking the fourth major legislative initiative to address COVID-19. The three earlier initiatives include:

• the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020, which was signed on March 6 and provided emergency funding relief for domestic and global efforts;
• the Families First Coronavirus Response Act, which was signed on March 18 and provided emergency funding relief for domestic efforts; and
• the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which was signed into law on March 27 and provided emergency funding relief for domestic and global efforts.

The Paycheck Protection Program and Health Care Enhancement Act includes a number of health provisions to address the domestic outbreak, which are summarized in the table below. This summary does not include other aspects of the domestic response addressed by the Act, such as additional funding provided for the paycheck protection program under the Small Business Administration.

Among the areas addressed is $100 billion for the Public Health and Social Services Emergency Fund at the Department of Health and Human Services (HHS), including $75 billion for additional funding to reimburse hospitals and other health care entities for health care related-expenses or lost revenues attributable to coronavirus (referred to as the CARES Act Provider Relief Fund, which now totals $175 billion overall) and $25 billion for necessary expenses related to COVID-19 testing. The testing funding includes:

• Not less than $11 billion for states, localities, territories, tribes, tribal organizations, urban Indian health organizations, or health service providers to tribes, of which:
  • Not less than $750 million shall be allocated to tribes and tribal organizations, and
  • Not less than $4.25 billion shall be allocated to States, localities, and territories according to a formula based on the relative number of COVID-19 cases;
• Not less than $1 billion for the Centers for Disease Control and Prevention (CDC);
• Not less than $1.8 billion for the National Institutes of Health (NIH);
• Not less than $1 billion for HHS’ Biomedical Advanced Research and Development Authority (BARDA);
• $22 million for the Food and Drug Administration (FDA);
• $600 million for the Health Resources and Services Administration (HRSA);
• $225 million for rural health clinics; and
• Up to $1 billion to cover the cost of testing for the uninsured.

Prior to the pandemic, the Trump Administration was encouraging and states were pursuing a range of changes to state Medicaid programs through Section 1115 waivers that ranged from waivers to enable states to receive federal Medicaid funds for services delivered in an institution for mental disease (IMD) for treatment of substance use disorder or serious mental illness, condition Medicaid eligibility on meeting work requirements, and, more recently, not to apply an array of federal rules in exchange for capped federal financing. The focus of Section 1115 waivers has taken a sharp turn to using waivers as a vehicle to respond to needs tied to COVID-19. Historically, Section 1115 authority has provided states with broader flexibility to expand coverage and/or provide uncompensated care to address the direct impact of natural disasters and public health emergencies (like New York City after 9/11, Hurricane Katrina, and Flint Michigan) on state Medicaid and Children’s Health Insurance Program (CHIP) programs. State actions under Section 1115 can help complement what states are doing under other emergency authorities (e.g., Section 1135 and 1915 (c) Appendix K) as well as their own existing authority to respond to emergency needs if approved by CMS.

In response to the COVID-19 public health emergency, CMS developed a new Medicaid section 1115 demonstration opportunity and application template. These demonstrations are intended to enable states to provide medical assistance in ways to help protect the health, safety and welfare of individuals and providers affected by COVID-19. There are requirements for monitoring and evaluation, but CMS is not requiring states to submit calculations showing that the waiver would be budget neutral to the federal government like traditional waivers due to the unprecedented emergency nature of the pandemic. These demonstrations can be retroactive to March 1, 2020 and will expire no later than 60 days after the end of the public health emergency. To date, at least 15 states have submitted Section 1115 COVID-19 related emergency waivers.

CMS approved the first emergency COVID-19 Section 1115 waiver for Washington on April 21, 2020. Most of the approved provisions in the waiver relate to long-term services and supports (LTSS) and follow the “pre-printed” waiver and expenditure authorities outlined in the CMS template. Most of the provisions extend HCBS flexibilities available under 1915 (c) home and community-based services waiver Appendix K to beneficiaries receiving LTSS under SPA authorities. The changes can help support HCBS enrollees and providers.

In the letter to the state, CMS noted that some provisions requested by the state were not approved and others were still under consideration.

• New temporary coverage: CMS did not approve the state’s request to establish a temporary eligibility group for individuals with incomes at or below 200% FPL. Washington had proposed using Medicaid funds to provide additional subsidies for people enrolled in Qualified Health Plans (QHPs) with income at or below 200% FPL to allow individuals to purchase and use Marketplace coverage with no or low out-of-pocket costs.
• Coverage for COVID-19 treatment for the uninsured: CMS is continuing to review Washington’s request for Medicaid expenditure authority to create a Disaster Relief Fund to cover costs associated with the treatment of uninsured individuals with COVID-19, housing, nutrition supports and other COVID related expenditures.
• Other provisions still under review: Other requests under continuing review include the state’s request to make retainer payments to HCBS providers beyond the 30-day limit, other payments to providers beyond those approved, and to allow transportation brokers to directly provide Non-Emergency Medical Transportation (NEMT).

Based on the Washington approval, it is not clear whether/when/how far CMS will go beyond the template to approve other state requests. Similar to CMS’ approach to reviewing/approving Section 1135 emergency waivers, CMS has approved provisions in the template but noted they will continue to consider other requests. During state stakeholder calls, CMS has said they will consider other available federal funds before approving state requests for expenditure authority for certain activities. For example, CMS pointed to relief funds available through CARES as rationale for not approving Washington’s request to cover treatment costs for the uninsured through Medicaid. In addition to Washington, other states have turned to Section 1115 waivers seeking additional flexibility to address pressing health coverage, benefit, delivery, and payment issues. For example, states are seeking to provide temporary housing for homeless individuals who test positive for coronavirus, extend/broaden coverage of home delivered meals, and the authority to use Medicaid funds to cover coronavirus-related testing and treatment for individuals in jails and prisons. During state stakeholder calls, CMS has noted they will not be approving Medicaid expenditure authority now for housing or additional nutrition services nor will they approve provisions that states could implement through other authorities. As the cases and deaths from the pandemic continue to rise, states continue to struggle to address the myriad of issues related to COVID-19. Whether CMS will consider other state requests and how quickly they will respond are outstanding questions.

The COVID-19 pandemic has changed the reality of working life for most of the U.S. workforce. Whether they find themselves laid off, working from home, or continuing to go to a workplace while taking measures to protect themselves and their families from infection, nearly all workers have felt some form of disruption in their jobs. In this post, we use data from the latest KFF Health Tracking Poll to examine the experiences of essential workers – those who are still required to work outside of their home during the coronavirus outbreak. Since the start of the pandemic, essential workers have been on the front lines making sure that people are able to continue to access their basic needs. While states have determined different criteria for what is deemed an essential business and essential worker, some jobs are universally essential across the country: hospital and health care delivery workers, grocery store clerks, pharmacy and convenience store employees, airline workers, and first responders, to name a few. While most workplaces have put measures in place to protect workers, essential workers still have a higher risk of contracting coronavirus compared to those who are able to stay home. So, who are these essential workers?

One-third (34%) of U.S. adults say they have been deemed an essential worker and are currently working outside their home. Compared to others who are currently employed (most of whom are presumably able to do their jobs from home), essential workers working outside the home are more likely to be Black (15% vs 5%), have a household income of less than $40,000 (31% vs 19%), and a majority (70%) of essential workers do not hold a college degree, while six in ten (61%) non-essential workers have at least a 4-year degree. One-fourth (26%) of essential workers say that they or someone in their family is a health care worker, one classification of employment that has been considered essential across the country.

Workplaces across the country look very different now than they did just a few months ago, regardless of whether that business or service has been deemed essential or not. While many non-essential workers have been able to adapt to conduct their work online and over the phone, essential places of employment have had to restructure their hours and occupancy to accommodate both the demand of their services and the safety of their workers. Hospitals have also had to reprioritize in order to help care for the influx of possible coronavirus patients. Life has been disrupted for the vast majority of workers, with members of both groups reporting their lives have been disrupted at least some by the pandemic (82% and 90% respectively). Our polling finds that essential workers are more likely than their non-essential counterparts to say that they have had their working hours reduced because of the outbreak (35% vs 24%), while one in five in both groups report experiencing pay cuts (19% of essential workers and 20% of non-essential workers).

In addition to being more likely to live in lower-income households, essential workers also report experiencing a heavier financial burden due to the coronavirus pandemic. Essential workers report having more difficulty affording necessities, such as credit card bills (19% vs 11%), utilities (15% vs 5%), and food (10% vs 4%), and are also more likely to say they are “very worried” or “somewhat worried” about affording food (24% vs 12%) specifically because of the crisis.

Essential workers working outside their homes may have an elevated risk of contracting coronavirus, and by extension, an increased risk of incurring expenses related to coronavirus treatment. Yet this group is less likely to have the financial resources to pay an unexpected medical bill without going into debt. When asked how they would pay for an unexpected $500 medical bill, a larger share of essential workers say they would have to borrow money to pay back the bill (31% compared to 19% of currently employed non-essential workers) or say they would not be able to pay the bill at all (16% vs 9%).

Furthermore, as some of the most vulnerable members of the workforce, essential workers are experiencing the pandemic up-close and personal. KFF polling finds at least three in ten workers—both essential and non-essential—report knowing someone who has tested positive for the coronavirus (33% and 30% respectively). However, a larger share of essential workers say they know someone who has died from complications related to coronavirus (13% vs 6%).

Despite being more likely to report financial challenges and knowing someone who has died from the virus, essential workers are no more likely than non-essential workers to report any adverse effects on their mental health and well-being due to the pandemic. About half of essential workers (49%) and a statistically similar share of non-essential workers (58%) say the coronavirus outbreak has caused them to experience at least one negative effect, including trouble sleeping, appetite problems, increased alcohol or drug use, or worsening chronic health problems.

While to date big cities and major urban areas have seen the greatest number of coronavirus cases and deaths, a new KFF analysis finds the growth rate is now higher in rural areas, where the population tends to be older, younger people are more likely to have high-risk health conditions, and there are fewer intensive-care beds.

The analysis finds that in the two-week period ending April 27, non-metro, mostly rural counties saw a 125% increase in coronavirus cases (from 51 to 115 cases per 100,000 people) and a 169% increase in deaths (from 1.6 to 4.4 deaths per 100,000 people). Meanwhile, metro counties saw a 68% increase in cases (from 195 cases per 100,000 people to 328) and a 113% increase in deaths (from 8.0 deaths per 100,000 people to 17.0).

Some counties with the highest rates of cases and deaths are located in Georgia, Oklahoma and Montana, which are beginning to ease social-distancing measures originally implemented to slow the spread of coronavirus. The analysis suggests such states could face particular challenges in easing such restrictions, given recent case and death trends in their rural counties.