Legislative Update: Governor Walz Signs Three Much Needed Executive Orders

Governor Walz Signs Three Much Needed Executive Orders

On Friday afternoon, Governor Walz signed executive orders 20-10, 20-11, and 20-12. These executive actions were absolutely necessary to ensure that mental health programs have the flexibility needed to continue providing services but in alternative ways during the COVID-19 pandemic. A recent article in the Star Tribune, as well as an opinion piece make the need for this action clear.

The most important executive order for the mental health community is EO 20-12. This executive order reflects SF 4200, which is bipartisan legislation that would easily pass on a floor vote if the legislature were able to convene. However, given the uncertainty in the legislature – including a staff person being diagnosed with COVID-19 in the House – Governor Walz correctly recognized the urgency of the situation and took executive action.

EP 20-12 provides the Department of Human Services with short-term flexibility to alter background study requirements, licensing and certification standards, requirements for in-person assessments, eligibility renewal standards for public programs, work or community engagement requirements, service delivery standards including treatment setting and staffing ratios, payment procedures, and more. The most important change for the mental health community relates to telehealth, where the executive order allows for flexibility regarding telehealth and other electronic strategies for communicating with providers or patients. Private plans in Minnesota have already agreed to reimburse telehealth from a person’s home and by phone.

This means that a community-based mental health provider will be able to bill for services provided via telehealth, even if this is a phone call and not the more intensive telehealth systems that would usually have to be used. This will increase much-needed mental health access while ensuring that healthcare providers and people with mental illnesses can follow best practices to avoid contracting COVID-19. Many people with mental illnesses don’t have computers or smartphones and people in rural Minnesota don’t have Internet. This step, allowing services by phone, was a top priority for NAMI Minnesota.

More detailed information on how DHS will be implementing the orders will be placed on the DHS website in the coming days.

EO 20-11 was also issued on Friday and allows the Department of Human Services to seek federal authority to waive or change federal requirements for all programs and services, including the Minnesota Family Investment Program (MFIP), Medical Assistance, MinnesotaCare, and other programs to maximize federal funding, maintain enrollee coverage and provider participation, and to ensure public health and safety.

The other order issued on Friday was EO 20-10, which prohibits price gouging for essential goods and services including food, gasoline, medical supplies, health care goods like hand sanitizer, and other essentials.

It’s important to know that your emails made a difference! Special thanks to senate leaders – Abeler, Hayden, and Marty and house leaders – Schultz, Liebling, Kiel, Albright, and Schomacker. We now have bipartisan support for this action in both the House and Senate.

More needs to be done at Federal Level on COVID-19 Response

As the Senate prepares the third in a series of COVID-19-related relief bills, please urge Senator Klobuchar and Senator Smith to ensure people affected by mental illness can maintain their treatment, get health and mental health coverage, access needed support, and lift up the nonprofits they depend on, like NAMI.

We need you to ask your U.S. Senators to do 4 things:

1. Remove barriers to mental health treatment. People need ways to manage existing mental health conditions and maintain mental wellness while reducing their exposure to the coronavirus. To do this, Congress should:

• Eliminate all barriers to widely implementing telehealth in all public and private health plans and encourage all health plans to provide extended supplies and/or mail order refills of prescriptions. Both actions will help people with mental illness avoid the risk of exposure to COVID-19.
• Approve funding for Emergency Response Grants at the Substance Abuse and Mental Health Services Administration (SAMHSA) to assist states in continuing to provide treatment for people with mental health conditions and substance use disorders.

2. Promote coverage for health and mental health care. People with mental health conditions are often uninsured or face barriers to getting needed treatment and support. These challenges are even greater during a crisis. To address this, Congress should:

• Immediately launch a special enrollment period for commercial health insurance in the Marketplace (HealthCare.gov) to make sure people have access to affordable, quality healthcare coverage.
• Require the use of “presumptive eligibility,” which allows certain providers like hospitals and clinics to enroll people in Medicaid that they believe meet eligibility criteria.
• Ensure free COVID-19 testing and treatment for everyone, including people who are uninsured.

3. Ensure safe housing for people with severe mental illness. Many people with severe mental illness experience homelessness or housing insecurity and are uniquely vulnerable to being exposed to the virus and outbreaks in shelters or encampments. With the loss of steady income, many more individuals are also at risk of losing housing. Congress must act by:

• Providing $5 billion to serve people who are homeless and help them stay safe and healthy during this emergency.
• Approving an additional $5 billion to provide rapid rehousing for people who are at immediate risk of becoming homeless and funding for rental assistance to help low-income renters weather this crisis.
• Putting a temporary stop on evictions to ensure that renters and homeowners maintain stable housing during this crisis.

4. Support nonprofits’ capacity to serve. The economic impact of this crisis will also touch charitable organizations like NAMI organizations and our partners. Nonprofits need support to meet greater demand and fill important gaps during this time. To assist, Congress should:

• Provide targeted assistance to 501(c)3 organizations to help them keep their doors open during this crisis and offer paid leave to their employees.

Senator Klobuchar and Senator Smith need to hear from you TODAY. Please contact them now to ensure people with mental illness are helped in their response to COVID-19.

News from the State Level

COVID-19 Update

NAMI Minnesota is working very hard to ensure that our members and supporters have access to the most up-to-date information about COVID-19 and the resources that are available. All this information is available at NAMI Minnesota’s website. Please also note that our support groups have been moved online and many classes are being scheduled online as well.

Special Open Enrollment Period for MNsure

In response to the COVID-19 pandemic, MNsure has opened a special enrollment period to obtain health insurance on the private marketplace. Starting on March 23rd, any Minnesotan can apply for health insurance on MNsure for coverage starting on April 1, with a deadline of April 21st to get coverage under this special enrollment period. Here is the broad eligibility criteria:

• This special enrollment period is for eligible Minnesotans who do not have current health insurance. 
• You do not need to be sick to qualify.
• If you are currently enrolled in a plan through MNsure, you cannot use this special enrollment period to change plans.

To learn more about this opportunity, all you have to do is go to MNsure’s website.

Governor Walz Signs Executive Order on Elective Surgeries

Governor Walz signed another executive order in response to the COVID-19 pandemic, requiring health-care providers to postpone elective surgeries, including elective dental procedures. This will reduce the strain on Minnesota’s health care system will experience and is in alignment with recommendations from the Centers for Disease Control and Prevention (CDC) and the Centers for Medicare and Medicaid Services (CMS). The executive order defines a non-essential or elective surgery as a procedure that can be delayed without undue risk of the current or future health of the patient. Potential criteria to consider when determining if a procedure is elective can include:

• Threat to the patient’s life if the surgery or procedure is not performed
• The threat of permanent dysfunction of an extremity or organ system, including teeth or jaws
• Risk of metastasis or progression of staging

You can read the full executive order here.

News from Federal Level

Federal Action on COVID-19 Outbreak

This week, Congress and President Trump were able to reach a compromise and pass H.R. 6201. While we can expect the passage of additional legislation in the near-term, this marks the first spending bill made in response to the COVID-19 pandemic. This legislation includes a number of funding increases and short-term policy waivers that will help people access the supports they need during the pandemic. Here are the key changes that NAMI members should be aware of:

Food and Nutrition:

• $500 million to provide nutritious food to low-income pregnant women or mothers with young children who lose their jobs due to COVID-19
• $400 million to meet the increased demand at local food banks, with $100 million set aside to support the storage and transportation of food.
• Allows the Department of Agriculture to approve state plans to provide emergency food stamps to children who qualify for free or reduced lunch when the child’s school has been closed for at least 5 consecutive days.
• $100 million for food assistance to U.S. territories.
• $250 million for a senior nutrition program to provide 25 million additional home-delivered and pre-packaged meals to low-income seniors who are homebound, have disabilities, have multiple chronic illnesses, or are caregivers for seniors who are homebound.
• Work and work training requirements are suspended for low-income jobless workers on food stamps.
• Allows states to request a waiver in order to have additional flexibility with food stamp benefits.

Emergency Paid leave

• In order to be eligible, the person must have been employed for 30 or more days before they were impacted by COVID-19, work for an employer with fewer than 500 employees, and meet one of these criteria
  • Worker has a COVID-19 Diagnosis
  • Worker is quarantined on the recommendation of health care provider, employer, or government official to prevent the spread of COVID-19
  • Worker is caring for someone with COVID-19 or under quarantine
  • Worker is caring for a child or another individual who is unable to care for themselves due to the COVID-19 related closure of a school, child-care facility, or other care programs.
• This benefit will be available for up to three months when the employee had to take more than 14 days of leave from their work in response to COVID-19.
• The benefit will amount to two-thirds of an individual’s average monthly earnings up to $4,000 and must be offset by any state or private paid-leave benefit the individual receives.
• SSI benefits do not count as income or resources for the purposes of this program.

Unemployment Benefits

• $1 billion for emergency grants to the states related to processing and paying unemployment insurance benefits.
• For states that experience an increase of 10% or more in its unemployment rate, the federal government will pay for 100% of the costs for extended benefits, which normally requires 50% funding from the states.

Paid Sick Leave

• All employers with fewer than 500 employees must allow workers to gradually accrue seven days of paid sick leave, as well as offer 14 days of sick leave immediately following a public health emergency.
• Paid sick days cover staying home when a child’s school is closed due to a public health emergency, when the employer is closed due to a public health emergency, or if you or a family member is quarantined or isolated due to a public health emergency.
• The federal government will reimburse small businesses with 50 or fewer employees for the costs of providing the additional 14 days of sick leave.

Health Insurance

• Requires private health plans and Public Health Plans to cover COVID-19 testing without any cost-sharing by the enrollee.
• The federal government will pick up costs related to COVID-19 testing for people without health insurance.

National Council Breakdown of CMS Actions on COVID-19

CONDUCTING TELEMEDICINE VISITS

CMS has clarified and provided more flexibility for states to respond to the coronavirus. The allowances outlined below will remain effective for the duration of the COVID-19 public health emergency.

Medicaid Telehealth

• CMS made clear to states that they already have the flexibility to utilize telehealth services, including audio-only services, in their Medicaid programs. States can cover telehealth using various methods of communication such as telephonic, and video technology commonly available on smartphones and other devices. No federal approval is needed for state Medicaid programs to reimburse providers for telehealth services in the same manner or at the same rate that states pay for face-to-face services.
• Note: States themselves, not CMS, are responsible for making these options, including audio-only telephonic services, available to providers.

Telehealth and Prescriptions of Controlled Substances: The DEA has announced that for the duration of the public health emergency, registered practitioners may issue prescriptions for controlled substances to patients for whom they have not conducted an in-person medical evaluation, providing the following conditions are met:

• The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of his/her professional practice
• Telemedicine communication is conducted using an audio-visual, real-time, two-way interactive communication system.
• The practitioner is acting in accordance with applicable Federal and State law.

This temporary relief of the Ryan Haight Act has been a long-term advocacy goal of the National Council and its members. We thank all members who worked to build this case with DEA over the years to make this emergency declaration possible.

Medicare Telehealth

• Retroactive to March 6, Medicare will temporarily pay clinicians to provide telehealth services for beneficiaries across the country. Previously, Medicare only covered particular services in specific situations, such as if an enrollee lived in a rural area and was unable to receive in-person services within a reasonable distance. A range of providers, including clinical psychologists and licensed clinical social workers, will be able to offer Medicare-covered telehealth services to enrollees based in any health care facility, including physicians’ offices, nursing homes, as well as from enrollees’ homes.
• Additionally, the Families First Act corrects language included in Congress’s first COVID-19 response package to clarify that, for the purposes of establishing a relationship with a provider to waive current prohibitions surrounding telehealth services in Medicare, any services allowable under Medicare will qualify as an existing relationship, even if Medicare was not the program paying for the service.

Telehealth Best Practices

The National Council has compiled a reference document that includes details on these changes and more, titled “Best Practices for Telehealth During COVID-19 Public Health Emergency.” This document is intended to provide mental health and substance use treatment providers with the background and resources necessary to help begin or expand the use of telehealth.

TELEHEALTH AND PRIVACY: HIPAA & 42 CFR PART 2

HIPAA: The Office for Civil Rights (OCR) at the Department of Health and Human Services (HHS) announced that it will exercise its enforcement discretion and will waive potential penalties for HIPAA violations against health care providers that serve patients through everyday communications technologies during the COVID-19 public health emergency. This applies to widely available communication apps such as FaceTime or Skype when used in good faith for any telehealth treatment or diagnostic purpose, regardless of whether the telehealth service is directly related to COVID-19.

42 CFR Part 2: SAMHSA issued guidance related to the sharing of substance use disorder health records throughout the public health emergency. SAMHSA makes clear in the guidance, information disclosed to the medical personnel who are treating such a medical emergency may be re-disclosed by such personnel for treatment purposes as needed. SAMHSA notes that Part 2 requires programs to document certain information in their records after a disclosure is made pursuant to the medical emergency exception. SAMHSA emphasizes that, under the medical emergency exception, providers make their own determinations whether a bona fide medical emergency exists for purpose of providing needed treatment to patients.

INCREASED HEALTH FUNDING 

• Federal Medicaid Funds: The federal government’s share of Medicaid payments, known as the Federal Medical Assistance Percentage (FMAP), has been increased by 6.2 percentage points. This increased assistance comes with the requirement that state Medicaid programs cover COVID-19-related treatment, vaccines, and therapeutics at no cost to enrollees as well as states not making eligibility standards more restrictive or increasing any cost sharing for enrollees.
• More Funding for CDC & NIH: The Trump Administration is updating its Fiscal Year 2021 Budget Request to include a request for an additional $45.8 billion and the necessary authorities for the Centers for Disease Control and Prevention (CDC) and the National Institutes of Health (NIH) to address ongoing preparedness and response efforts.