COVID-19 has triggered a national and public health emergency (PHE). To date, nearly one million people have been diagnosed with the virus in the U.S. and the elderly and persons with chronic health conditions are especially at risk. Many states have petitioned the federal government for flexibility in administering their Medicaid programs to relax rules and regulations to respond to the emergency. Health systems are shifting resources to hospitals and other front-line sites. This virus, however, will leave in its wake some victims who are impacted by COVID-19 and the response to it, even though they never contract the virus.
“Evelyn” is a seventy-nine-year-old widow who lives alone in her urban apartment. She receives Medicaid along with her Supplemental Security Income (SSI) benefits. Evelyn has arthritis and diabetes, but she is able to live alone with the assistance of an aide that visits each week day to help Evelyn bathe, dress, clean her home, tend to laundry, and prepare meals. On weekends, Evelyn’s daughter who lives a half hour away comes by to assist her.
During the PHE, Evelyn’s city issues a shelter in place order. Home health aides are deemed essential workers. However, the aide that assists Evelyn does not have child care. When schools close, she is unable to work. The home health agency that provides aides has lost many workers because the state has shifted resources and increased reimbursement to aides who work in hospitals and facilities. Other aides test positive for COVID as they assist infected patients, and they are not given Personal Protective Equipment or PPE. As a result, Evelyn has no home health care during the week.
Evelyn’s daughter brings food and medicine to her mother, but she has been required to work longer hours as a grocery store clerk. She has flu-like symptoms, and she does not want to transmit COVID-19 to her elderly mother. Evelyn has no home health care on the weekend.
On week two without assistance, Evelyn slips and falls in the shower and fractures her hip. She has to be hospitalized.
Home and Community Based Services
In addition to provider visits and prescription costs, Medicaid also pays for home and community based services (HCBS). Nursing and personal care services allow the elderly and persons with disabilities to integrate into the social mainstream, to live in a community rather than in an institution. Direct care workers — the people who assist beneficiaries with bathing, dressing, and completing other basic activities of daily living — also face increased risks from COVID-19. These aides provide hands-on care, but they often do not have access to PPE.
Even prior to the COVID-19 PHE, many individuals struggled to get all of their authorized personal care hours filled, due to workforce shortages. Now, as elective procedures are postponed and non-critical patients are being released from hospitals to make room for COVID-19 patients, more people will need in-home aides. Worker shortages at a time when more in-home aides are needed means that older adults and persons with disabilities will be forced to choose between living at home without the supports and services needed or moving into an institution or nursing home where they lose autonomy, social connections, and face higher COVID-19 transmission.
After having surgery for her fracture, Evelyn’s providers dismiss her from the hospital as quickly as possible. She still needs convalescent care, and she is placed in a skilled nursing facility (SNF); Medicaid authorizes an initial 30-day stay. Normally before this initial authorization ends, there would be an assessment to evaluate if and how to safely get Evelyn back to her home, but these assessments have been waived because of the COVID-19 PHE. The SNF simply extends Evelyn’s authorization. On the 45th day that Evelyn is in the SNF, several residents and a nurse test positive for COVID-19. Evelyn and other residents are quickly transferred to another facility. This facility is two hours away from her community and her daughter’s home. Evelyn’s family does not learn about the move for some time. With every day that passes in the facility, Evelyn’s chances of returning to a home with support services diminishes.
There are a variety of authorities that allow states to alter Medicaid programs to respond to public health emergencies. One of those authorities is the Section 1135 Emergency Waiver that allows certain Medicaid rules to be suspended during the emergency. Nearly every state has requested and received an 1135 Emergency Waver from the Centers for Medicare and Medicaid Services (CMS).
For numerous states, CMS has granted permission to suspend Preadmission Screening and Resident Review (PASRR) assessments and to allow reimbursement for services rendered in an unlicensed facility in the event of an evacuation.
PASRR is an important federal requirement designed to ensure that individuals are not needlessly institutionalized in accordance with the Supreme Court decision, Olmstead v. L.C., 119 S. Ct. 2176 (1999), under the Americans with Disabilities Act. Law and precedent establish that individuals with disabilities cannot be required to be institutionalized to receive public benefits if appropriate supports can be furnished in community-based settings. Requiring initial and periodic assessments for any patient transferred from acute hospital care to nursing care to determine the type of care that a patient needs and the length of time a patient should be admitted in order to receive this care are all crucial safeguards to prevent unnecessary institutionalization.
During the pandemic, stressed hospitals are quickly transferring patients recovering from COVID-19 to nursing homes, and this also, at times, leads to nursing facilities quickly moving uninfected residents to alternative facilities. Residents are occasionally moved to unlicensed facilities. In California, for instance, some nursing home patients have been moved to the USNS Mercy, a Navy hospital ship to separate them from residents that have tested positive for the virus. In states making these types of transfers, it is likely that no hearing rights will be given and perhaps not even notice.
During this emergency the direct care workforce is under immense pressure. At the same time more and more individuals will need to access home and community-based services.
States should use Medicaid flexibilities to bolster HCBS. For instance, Section 1915(c) waivers permit states to allow family caregivers and legally responsible individuals who would typically be prevented from providing services to be paid caregivers. An appendix K is a standalone appendix that states can use to make changes to HCBS. One important waiver provision request is to utilize the appendix K to “temporarily allow family caregivers and legally responsible individuals to be paid providers.”
As this pandemic grips our nation, it is crucial to recognize all of those impacted by COVID-19. People with disabilities and older adults who never have COVID-19 may have their lives permanently upended during and in the aftermath of the crisis. More protections for individuals with disabilities and older adults are needed to ensure that they are protected at the same time that reasonable flexibility is implemented to address the crisis.