Making Lemonade from a Very Sour Lemon: Capitalizing on Regulatory Flexibilities Born from the COVID-19 Public Health Emergency

By Gretchen Alkema, The SCAN Foundation


The 2019 novel coronavirus has upended the human experience across the globe, touching every aspect of daily life in and outside of the health-related infrastructure. Older adults as well as those living with complex care needs have been severely harmed by COVID-19, as shown by these startling figures among Medicare beneficiaries as of July 2020:

  • Nearly 80 percent of all COVID-19 related deaths are among those age 65 and older, with nearly 40 percent in nursing facilities.
  • Hospitalizations are six times higher and deaths 12 times higher for those with reported underlying severe conditions, such as cardiovascular disease and diabetes.
  • People who are dually eligible for Medicare and Medicaid represent more than twice the number of cases and hospitalizations compared to those who only have Medicare coverage.
  • Communities experiencing economic and social inequities along with health disparities have been more severely impacted. For example, Black Americans represent 13 percent of the population, yet comprise 23 percent of COVID-19 related deaths. In every age decile, they have died from COVID-19 at roughly the same rate as whites who are more than a decade older.

The public health and health care worlds have been at the center of humanity’s fight against COVID-19 since early this year. Health and Human Services Secretary Alex Azar first declared a public health emergency on January 31, 2020, which was extended for another 90 days on July 23. The emergency order activated a rolling response across all levels of federal, state, and local governments with the most profound impact on the health and long-term care delivery systems. Hospitals, nursing homes, community and home-based care providers, and the like are equally struggling to manage the intensity of being engulfed by pandemic-related cases and deaths while similarly experiencing the abandonment of “business as usual” due to appointment cancellations, postponement of non-emergency procedures, inability to serve people in group settings, and strict physical distancing for the most medically vulnerable.

New Flexibilities to Support Care Across the Continuum Amid COVID-19

Health and long-term care systems by their very nature as publicly funded enterprises through Medicare and Medicaid are highly regulated and predictably organized around routine processes and protocols. Therefore, as coronavirus entered the United States from both coasts with an anticipated spread pattern across the country, officials at the Centers for Medicare and Medicaid Services took action to allow states and local-level providers substantial regulatory flexibilities in how care could be organized and delivered during this period.

Several recent briefs describe the wide range of these regulatory flexibilities. With funding from The Commonwealth Fund and The SCAN Foundation, Health Management Associates developed a brief focused on the waivers and changes to Medicare regulations in order to help health care providers, Medicare Advantage plans, and Part D plans respond to the public health emergency. Manatt Health outlined new Medicaid flexibilities available in a state resource guide in order to ensure access to long-term services and supports (LTSS) for those populations most at risk. The Manatt brief, funded by The SCAN Foundation, provides 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 pandemic. Additionally, The SCAN Foundation published a policy brief reviewing California’s response to and implementation of federal flexibilities to ensure that its LTSS system is responsive to the needs of older adults and people with disabilities.

All three of these briefs describe policy flexibilities and administrative actions across the following themes:

  • Virtual care delivery and care management: These seek to ensure individuals can access health care and LTSS while minimizing their risk of COVID-19 exposure by expanding the use of telehealth in place of in-person visits for care management activities.
  • Access to services: These seek to ensure individuals can access needed care and support by providing services in new ways, removing prior authorization requirements, and easing administrative requirements.
  • Alternate care sites: These seek to allow individuals access to health care and LTSS by expanding the allowable settings where care and services can be provided (with particular emphasis on home-based care for LTSS).
  • Provider capacity: These seek to expand the pool of medical, nursing, and LTSS providers to ensure individuals can receive services in a timely and responsive manner through broadened interpretations of scope of practice.
  • Consumer protections and safety: These seek to ensure an individual’s safety in receiving care as well as equitable access to services.
  • Reporting and audit requirements: These seek to limit information collection, including quality reporting, and pause audit functions in order to conserve staffing resources for care delivery usage.

Embracing Innovation Opportunities Through Pandemic Adversity

History teaches us that in the midst of dangerous, tragic life events that create human suffering, bold responses by leaders can forge widespread advancement in areas that improve the human condition. Taken in this light, COVID-19 has created a powerful opportunity for health care and LTSS leaders to utilize these federal and state flexibilities in order to adopt new ways of delivering services that amplify person-centeredness based on consumers’ needs, values, and preferences. 

No one knows how long this public health emergency will last and the impact of its ultimate devastation, particularly for older adults and those living with complex care needs. However, health care and LTSS leaders can use this difficult period to pilot test new models that address individuals’ needs in the changing environment, evaluate and learn about their long-term benefits and implications, and further explore ways of addressing care delivery needs beyond what was previously imagined. In this way, the United States can begin to renovate its currently challenged health care and LTSS system to fully meet the desires and demands of the 21st century. That could be a delicious batch of lemonade from a very sour lemon.