COVID-19 Resource Guide: Leveraging Federal and State Authorities to Ensure LTSS Access

Manatt, Phelps & Phillips, LLP

Editor’s Note: In an updated and expanded resource guide, supported by a grant from The SCAN Foundation, Manatt Health provides a tool to help state officials and other stakeholders understand how temporary federal and state Medicaid flexibilities and emergency federal funding streams are being deployed during the COVID-19 pandemic to help ensure access to long-term services and supports (LTSS). Key points are summarized below. Click here to download a free copy of the full resource guide.


Populations who use LTSS are particularly vulnerable to contracting COVID-19 and experiencing severe cases due to their age or because often they live with one or more chronic conditions. In addition, roughly 2.5 million older adults and other individuals with complex care needs receive care in nursing homes and other congregate care settings, which are particularly susceptible to COVID-19 outbreaks.1 Another 10 million individuals receive assistance at home or in their communities, which in many cases has been disrupted due to caregivers being subject to stay-at-home orders, having no access to childcare as schools shut down, not having adequate access to personal protective equipment (PPE) needed to provide care safely, and in some cases, entering isolation after becoming sick with or being exposed to COVID-19.

The first edition of Manatt’s resource guide was published in June 2020, roughly four months after the first reported COVID-19 outbreak in the United States, in a long-term care facility in Kirkland, Washington. Since then, the federal COVID-19 public health emergency, which triggers the availability of many emergency flexibilities, has been extended four times2 and is expected to continue throughout 2021.3 As the emergency continues, significantly more states have pursued regulatory flexibilities, taken administrative action, and directed federal emergency funding to bolster their LTSS systems and ensure access to care for their most vulnerable residents. The updated guide reports on those developments.

How States Are Using Emergency Flexibilities

State responses addressing COVID-19 in their LTSS systems have consistently been focused on:

  • Expanding remote service delivery options via video and audio-only modalities to ensure access to care while protecting the health and safety of both beneficiaries and providers.
  • Expanding and stabilizing providers and the LTSS workforce through modified credentialing requirements and enhanced reimbursement rates/pay.
  • Maintaining continuity of care by conducting virtual needs assessments, delaying reassessments and extending prior authorizations.
  • Extending home care to new populations by expanding eligibility criteria and scope of covered services.

States also continued to leverage emergency federal funding to support all aspects of LTSS delivery during the pandemic, primarily from the CARES Act Coronavirus Relief Fund, FEMA and revenue from Medicaid expenditures from increased provider rates authorized through the emergency authorities.4 This emergency funding, which was often coordinated at the gubernatorial level or through cross-agency or cross-sector bodies, helped states provide retainer payments and hazard pay to direct care workers, pay for newly authorized services or services with higher utilization during the emergency, and pay for teams of temporary health care workers dispatched to long-term care facilities to provide enhanced infection control and testing.

Because the public health emergency is likely to remain in place through the end of 2021, states have an opportunity to assess the impacts of their COVID-19 responses and do careful post-pandemic planning. Many of the temporary changes states have put in place during the pandemic, either through federal authority or state action, are allowable outside of an emergency situation under nonemergency authorities, such as 1915(c) or 1115 waiver amendments or state plan amendments.

The emergency authorities covered in the resource guide provide states with a simpler and expedited federal authorization process, including templates and preprints that identify commonly used emergency flexibilities. States are beginning to assess which temporary flexibilities they would like to and can make permanent using nonemergency authorities. States are also beginning to assess which temporary flexibilities they want to be able to “toggle on and off” during future public health emergencies, and how to implement the lessons learned from the pandemic into long-term LTSS system reform.

Regulatory and Administrative Flexibilities

The resource guide includes detailed tables highlighting state policy goals in implementing regulatory flexibilities and administrative actions available during the COVID-19 public health emergency, as well as specific examples of how states are ensuring continued access to LTSS by expanding the types of settings in which services can be delivered, bolstering pay and other supports for LTSS providers, and addressing barriers to care created by the COVID-19 pandemic. Areas covered include:

  • Eligibility and enrollment flexibilities that seek to expedite or expand access to LTSS for beneficiaries by easing financial and clinical eligibility requirements for LTSS and removing barriers that could jeopardize beneficiaries’ eligibility for services.
  • Benefits and care management flexibilities that seek to ensure beneficiaries can easily access services during the pandemic by expanding self-direction opportunities, covering new services, removing prior authorization requirements, or easing administrative requirements related to care management assessments and person-centered care plan development.
  • Alternate care site flexibilities that seek to protect high-risk beneficiaries and workers from contracting COVID-19, or to mitigate the spread of COVID-19, by authorizing states to cohort COVID-19-positive beneficiaries in separate care sites from beneficiaries without COVID-19 and by authorizing the expansion of allowable settings where Home- and Community-Based Services (HCBS) may be provided.
  • Remote service delivery flexibilities that seek to protect beneficiaries from contracting COVID-19 by expanding and supporting the use of remote service delivery, in place of in-person visits, for care management and care delivery activities.
  • Provider capacity and workforce flexibilities that seek to expand the pool of LTSS providers and financially support providers and workers to ensure beneficiaries can receive services to which they are entitled during the COVID-19 pandemic.
  • Reporting and appeal flexibilities that seek to monitor the prevalence of COVID-19 among LTSS recipients or minimize administrative and reporting burdens on state agencies, providers and LTSS recipients to focus efforts and resources on the COVID-19 response.

Looking Ahead

Many states around the country have used the regulatory and administrative flexibilities and federal funding described in the resource guide to ensure that vulnerable residents continue to receive critical health care services—including LTSS—during the COVID-19 pandemic. As states begin to consider which flexibilities to begin unwinding, which to make permanent, and which to adopt for future COVID-19 “waves” and other public health emergencies, state policymakers should engage care recipients, caregivers, providers and, where applicable, the organizations that represent them to evaluate how approved flexibilities have impacted them over the past year.

States can also use evaluations to determine the direction of broader LTSS system reform, such as expanded remote service delivery and increased supports for the LTSS direct care workforce. To support this process, federal policymakers should provide states with technical support and ongoing guidance on temporary flexibilities that can be made permanent and authorities for doing so.5 States would also benefit from a centralized and defined process for federal support and approval of post-pandemic policymaking, and state-to-state learning opportunities when possible.

1 As of February 2021, more than one-third of COVID-19 deaths in the United States are attributed to long-term care facilities, inclusive of staff and residents. In many states, long-term care facility staff and residents accounted for more than half of all deaths, reaching as high as 72% in one state (https://covidtracking.com/nursing-homes-long-term-care-facilities).

2 https://www.phe.gov/emergency/news/healthactions/phe/Pages/default.aspx.

3 https://ccf.georgetown.edu/wp-content/uploads/2021/01/Public-Health-Emergency-Message-to-Governors.pdf.

4 Additionally, the CARES Act Provider Relief Fund allocated $4.9 billion to nursing homes. Though some states provided nursing homes with technical assistance to access these funds, the money was distributed directly from the federal government without state involvement.

5 CMS issued guidance on extending temporary flexibilities beyond the emergency in a December 2020 State Health Official Letter: “Planning for the Resumption of Normal State Medicaid, CHIP, and BHP Operations Upon Conclusion of the COVID-19 Public Health Emergency.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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