COVID-19 Emergency Actions for Consideration

by James C. Sherlock

I was asked yesterday by Christian Braunlich, president of the Thomas Jefferson Institute for Public Policy in Alexandria, to prepare a list of recommended state actions to cope with the emergency. I produced the attached list. The recommendations are offered here as requested with no attempt to prioritize. No attempt has been made to keep up with rapidly changing federal and state actions that may affect this list. I hope it may help.

Subject: COVID-19 Emergency Actions for Consideration by Virginia’s Governor, Attorney General, Insurance Commissioner and General Assembly[1]

A. Health-care and health insurance-related recommendations

1. Department of Medical Assistance Services (DMAS) request from CMS Section 1135 waivers as appropriate.

“When the President declares a disaster or emergency under the Stafford Act or National Emergencies Act and the HHS Secretary declares a public health emergency under Section 319 of the Public Health Service Act, the Secretary is authorized to take certain actions in addition to her regular authorities. For example, under section 1135 of the Social Security Act, she may temporarily waive or modify certain Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) requirements to ensure that sufficient health care items and services are available to meet the needs of individuals enrolled in Social Security Act programs in the emergency area and time periods and that providers who provide such services in good faith can be reimbursed and exempted from sanctions (absent any determination of fraud or abuse).

Examples of these 1135 waivers or modifications include:

  • Conditions of participation or other certification requirements
  • Program participation and similar requirements
  • Pre-approval requirements
  • Requirements that physicians and other health care professionals be licensed in the State in which they are providing services, so long as they have equivalent licensing in another State (this waiver is for purposes of Medicare, Medicaid, and CHIP reimbursement only – state law governs whether a non-Federal provider is authorized to provide services in the state without state licensure)
  • Emergency Medical Treatment and Labor Act (EMTALA)
  • Stark self-referral sanctions
  • Performance deadlines and timetables may be adjusted (but not waived).
  • Limitations on payment for health care items and services furnished to Medicare Advantage enrollees by non-network providers

These waivers under section 1135 of the Social Security Act typically end no later than the termination of the emergency period, or 60 days from the date the waiver or modification is first published unless the Secretary of HHS extends the waiver by notice for additional periods of up to 60 days, up to the end of the emergency period.

Additionally, the Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers regulation applicable to all 17 provider types, also requires inpatient providers to have policies and procedures that address the facility’s role under an ‘‘1135 waiver’’. See the final rule for more information or contact your Regional Offices.”[2]

2. DMAS Consider Implementing Pre-approved Self-directed Medicaid Services.

A self-directed service “means that participants, or their representatives if applicable, have decision-making authority over certain services and take direct responsibility to manage their services with the assistance of a system of available supports. The self-directed service delivery model is an alternative to traditionally delivered and managed services, such as an agency delivery model. Self-direction of services allows participants to have the responsibility for managing all aspects of service delivery in a person-centered planning process.”

“Self-direction promotes personal choice and control over the delivery of waiver and state plan services, including who provides the services and how services are provided. For example, participants are afforded the decision-making authority to recruit, hire, train and supervise the individuals who furnish their services. The Centers for Medicare & Medicaid Services (CMS) calls this “employer authority.” Participants may also have decision-making authority over how the Medicaid funds in a budget are spent. CMS refers to this as “budget authority.”  States have several options under the state plan and waivers for providing enrollees with the option to self-direct Medicaid services:

  • Home and Community-Based Services State Plan Option-1915(i)
  • Community First Choice-1915(k)
  • Self-Directed Personal Assistance Services State Plan Option-1915(j)
  • Home and Community-Based Services Waiver Programs-1915(c)”[3]

3. Secretary of Health and Human Resources Form an Emergency Reserve Medical Corps

  • Secretary of Health and Human resources adopt the recommendation of the President of the Medical Society of Virginia to coordinate short office work week implementation between with independent specialist physicians offices and the state and local Departments of Health to form a reserve medical corps to support hospitals and primary care providers as may be required.
  • Commissioner of Insurance and Department of Medical Assistance Services support this effort to ensure that such medical professionals can get paid for the work of assisting in the crisis.
  • Code of Virginia § 8.01-225. Persons rendering emergency care, obstetrical services exempt from liability “Any person who: “In good faith, renders emergency care or assistance, without compensation, to any ill or injured person (i) at the scene of an accident, fire, or any life-threatening emergency; (ii) at a location for screening or stabilization of an emergency medical condition arising from an accident, fire, or any life-threatening emergency; or (iii) en route to any hospital, medical clinic, or doctor’s office, shall not be liable for any civil damages for acts or omissions resulting from the rendering of such care or assistance.” Attorney General render an advisory opinion on whether Code of Virginia § 8.01-225 will cover the new emergency reserve medical corps.   If not, General Assembly and Governor amend it to do so.

4. Governor petition CMS and Insurance Commissioner ask licensed health insurers to reduce mandatory medical reporting requirements except those that would threaten patient and provider safety.

5. Secretary of Health and Human resources oversee the sharing of personal protective equipment and clothing among health systems, hospitals and independent physicians to ensure the protection of all.

6. Virginia Department of Health Professions relax occupational licensing rules and regulations as appropriate to limit the need for specialized facilities.

7. Virginia Department of Health Professions grant full practice authority to advanced practice registered nurses (APRNs). APRNs (nurse practitioners, nurse anesthetists, nurse-midwives, and clinical nurse specialists) should be enabled to practice to their full scope of education, training, and certification.

8. Governor or General Assembly with the advice of the Department of Health Professions consider permitting pharmacists

  • to make non-narcotic medicine refills available without new prescriptions on a limited emergency basis.
  • test for and prescribe medication for non-chronic conditions.

9. Commissioner of Insurancereview authorities and attempt to ensure that insurance network considerations do not hamper the delivery of care during the crisis.

  • Request additional authorities from the General Assembly as appropriate.
  • General Assembly remove state limitations on short-term and catastrophic health policies in the absence of COBRA protections.

The Consolidated Omnibus Budget Reconciliation Act (COBRA) gives workers and their families who lose their health benefits the right to choose to continue group health benefits provided by their group health plan for limited periods of time under certain circumstances such as voluntary or involuntary job loss, reduction in the hours worked, transition between jobs, death, divorce, and other life events.

COBRA generally requires that group health plans sponsored by employers with 20 or more employees in the prior year offer employees and their families the opportunity for a temporary extension of health coverage (called continuation coverage) in certain instances where coverage under the plan would otherwise end.Investigate to see whether the laws governing short-term and catastrophic  insurance plans may need to be relaxed so that people who lose their coverage during the pandemic can replace it.  COBRA will not work in cases in which the corporation that has maintained the benefit plan goes bankrupt.

B. Other Recommendations

General Assembly and Governor delay the legislated increase in Virginia’s minimum wage as appropriate to the crisis.

General Assembly consider a sales tax holiday.

Governor and local governments repurpose money used to attract business to health related initiatives.

Virginia match the IRS deadline for filing taxes.

Governor permit commercial instruction of recreation activity in public parks.

General Assembly extend state tax breaks to businesses especially affected by the COVID 19 emergency.

Delay the implementation of any state government energy mandates.

Temporarily nullify any taxes or restrictions on single use plastics.

General Assembly seek state Supreme Court opinion on using emergency discretion to allow legislators to hold committee meetings and vote via teleconferencing. Broadcast the proceedings to permit public participation, perhaps by email, and record the proceedings to comply with the records acts.

Attorney General aggressively enforce the Virginia Post-Disaster Anti-Price Gouging Act.

A version of this list was originally developed for the state of Colorado and published by  At the request of the Thomas Jefferson Institute for Public Policy, it has been heavily modified by James C. Sherlock in a very short term attempt to make it relevant to Virginia.  No attempt has been made to keep up with rapidly changing federal and state actions that may affect this list.  Corrections will be made by the appropriate state officials and General Assembly members should they consider these recommendations.



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10 responses to “COVID-19 Emergency Actions for Consideration”

  1. Steve Haner Avatar
    Steve Haner

    As much as I love all 14o of the dears, keeping the General Assembly away from major actions until the April 22 Veto Session seems wise to me. They can send in their ideas. The first goal is to get the health care system ready for the wave of cases, and Sherlock has several good recommendations there. Remote telemedicine is going to flourish. The state needs to reserve hospital beds for the respiratory distress cases coming. Pharmacies can and should be allowed to do more direct care, again relieving the burden on the other facilities.

    But (believe it or not) I don’t see this crisis as an opportunity to radically change the tax structure. Virginia and other states are cash operations. Sales tax revenues are going to drop without any rate cuts or “holidays.” Income tax revenues will lag, but will also drop quickly as tens (hundreds?) of thousands move from paychecks to unemployment checks, and the recovery (it will come) may be slow. In the UI realm, the system already allows for federal loans to prop up state funds, but my prediction is UI benefits will be enriched and extended, so the demand for federal underwriting will be enormous.

    Getting cash to people as direct grants or giving them some income maintenance with unemployment will help, but only so much if the stores and restaurants remain closed for 90 days. Maybe a sales tax holiday would spur online shopping, more use of restaurant takeout, etc. But I think the demand is there.

    Should the state suspend its planned gas tax increases or cigarette taxes? The cigarette tax has a deeper financial impact on idiots who still use the product, and they are the same idiots who will be filling up the hospitals soon due to their COPD. I’d ban the sale of tobacco if people are serious, not keep the price low. That’s just me being contrarian.

    Nobody is going to notice the fuel tax hikes in an energy depression, and gasoline prices are going to depression level. Again, the state is a cash operation, and those funds will be needed for highway maintenance and construction (have we suspended those yet?).

    Left and right are looking at this crisis as an opportunity and frankly I’m not impressed with that effort either way. Job One is health care and Job Two is keeping as much of the economy operating as possible.

  2. Reed Fawell 3rd Avatar
    Reed Fawell 3rd

    James C. Sherlock at this particular moment in time is a national treasure, an example of the great contribution a single individual can make in times of crisis when so many of our designated leaders make no contribution at all, and too often instead do far more harm than good. This is the sure sign to a time of crisis. Therein leaders in place show their true colors, many being plainly not up to the task (think NY Mayor Bill de Blasio), while others hidden or obscure before rise as if from nowhere to make grand contributions to resolving the crisis at hand. Then there is another sort. Like New York Governor Andrew Cuomo, reviled by many before (myself included) who steps up into the world-wind void as if a force of nature himself to deal effectively with massive unforeseen and novel problems hitting with great force and surprise.

    1. djrippert Avatar

      Cuomo is doing a good job. So is Larry Hogan. The same can’t be said for Comrade Mayor de Blasio. Let’s hope the governor of New York can overcome the stupidity of the Mayor of New York City.

      1. TooManyTaxes Avatar

        The Moroon from the Gracie Mansion was on CNN talking about FDR’s post-Pearl Harbor statement “The only thing we have to fear is fear itself.” The dip%%%% didn’t know FDR made that statement in his March 4, 1933 inaugural address. And, of course, the CNN morons didn’t catch it.

        And De Blasio moaned that Trump hadn’t called out the Army but ignored the fact that Cuomo hadn’t called out the National Guard, a normal first step. The CNN morons didn’t catch that one either.

        Hopefully, a lot more journalists will lose their jobs due to COVID-19.

  3. Jim, I appreciate the importance of getting the bureaucracy reoriented and its impediments streamlined and you have an impressive list. But in addition, we need HOSPITAL BEDS and we need them NOW. In the context of expanding community colleges and such we have talked here before about the “unused” instititutional facilities in Virginia. Why aren’t we rushing this one into emergency hospital status:
    You realize, of course, this is the Lynchburg Training Facility campus in Madison Heights, Virginia, formerly used to “train” patients who were “mentally retarded” and sitting there essentially abandoned except for a caretaker crew since about 2014.

    1. djrippert Avatar

      I used to watch the show M*A*S*H. Mobile Army Surgical Hospital I believe. Doesn’t the Virginia National Guard have the expertise to stand up filed hospitals? Doesn’t our governor have the authority to “call out the national guard”? Why isn’t the national guard setting up the Lynchburg Training Facility campus (or other places) into field hospitals?

  4. Last thing we need is a plastics bag ban right now. We are lucky to have bags at all. I am confused if this measure was passed.

  5. djrippert Avatar

    Watching New York Governor Cuomo’s news conference this morning points out the differences between a competent governor and Ralph Northam. Cuomo was transparent, on point, fact based and definitive in his actions. He was clear and precise. He took full responsibility for the actions being taken including any negative consequences of those actions.

    He claimed (I assume accurately) that the New York City area has now tested more people on a per-capita basis than China or South Korea. The results are shocking. Confirmed COVID-19 cases are skyrocketing in New York overall and New York City in particular.

    Meanwhile, back in Virginia … we plot curves of confirmed cases and try to console ourselves that, as of this moment, we only have 97 confirmed cases. Of course this statistic is rubbish unless viewed in the context of total tests performed. If I followed Gov Cuomo’s graphs correctly about 32,000 tests have been administered and about 7,000 COVID-19 positives have been detected from those tests. Just under 1 positive for every 5 tests administered. Obviously, tests are administered to those who appear to need testing (unless you are a politician, sports star or entertainer). Therefore, one can’t necessarily draw conclusions about the prevalence of COVID-19 in the general population from the tests. However, testing is directly correlated to the number of positive cases detected. If we’re not aggressively testing across Virginia then we don’t know where we stand.

    New York state has a population of 19.5M. Virginia has a population of 8.5M. New York state has 7,000+ confirmed cases of COVID-19. Virginia has 97.

    Is “The Virginia Way” magically protecting us from this disease?

    Northam needs to follow Cuomo’s lead and transparently describe the situation in Virginia – especially the number of tests conducted. He then needs to openly define the actions he is taking, considering and the actions he has ruled out in light of the testing. This explanation should include some (many?) of the suggestions made by Capt. Sherlock.

    The less Northam says the more I wonder how big a fiasco is brewing in Virginia.

  6. Yes. I would more than appreciate it if he, Northam, would call it like he sees it on the availability of testing kits and preparedness to do drive-through testing, testing, testing when the State’s hospitals and health clinics get them. The political obfuscation of this most obvious, most notorious failing of our public health system has obliterated clarity. What is the truth of the situation and what is the time frame to remedy it? That is the question on everyone’s mind these days; if Northam can’t get straight answers either then say so. Anecdotal evidence is overwhelming that the test kits are not in the hospitals yet, but a governor saying so carries much more weight!

    1. djrippert Avatar

      The virus is certainly worse than the reported cases in Virginia make it appear. If our governor admitted that people might take the social distancing more seriously. There is no preventing panic anymore. That ship has sailed. Now there is only encouraging common sense precautions. Seeing the parking lots for parks in NoVa overflowing on Wednesday was a shock. Those parking lots were far more crowded than on a summer day when school is out and there is no coronavirus. It’s party time I guess. The beaches in Florida also make me stare in amazement.

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