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May 2022  Volume 16Issue 1
Journal of Health and Life Sciences Law

Developments in the Quest to Advance Equity in Maternal and Child Health in the Age of COVID-19: The Bad, the Good, and the Promising

  • May 23, 2022
  • Andrea Ferrari , Jones Walker LLP

ABSTRACT: The United States has the highest rate of maternal mortality among the world’s high-income economies.1 Based on 2020 data, it also ranks 33rd out of 36 among the Organization for Economic Cooperation and Development’s member countries in infant mortality.2 Equally concerning as the United States’ overall rates of maternal and infant mortality are disparities in the rates based on race, ethnicity, and geography. For example, data from the Centers for Disease Control and Prevention’s Pregnancy Mortality Surveillance System indicate that Black and American Indian/Alaska Native women have significantly more pregnancy-related deaths per 100,000 births than other women giving birth in the U.S., and that these disparities exist across age groups and education levels.3

Although the COVID-19 public health emergency has in many ways worsened disparities and challenges for mothers and babies in higher-risk populations, the resulting regulatory and market changes may ultimately lead to new solutions and successes in the quest to address the issues of maternal and child morbidity and mortality in the U.S. This article will explore how and why this may be the case.

Introduction: Overview of Maternal and Child Health in the United states

Each year, an estimated 50,000 women in the United States suffer severe pregnancy-related morbidity, and approximately 700 women consequently die.4 In 2018, before the COVID-19 public health emergency (the COVID PHE), more than 21,000 infants born in the U.S. died from causes such as birth defects, preterm birth, low birth weight, injuries during or after delivery, sudden infant death syndrome, and maternal pregnancy complications.5

Alarmingly, while rates of maternal mortality are declining elsewhere in the world, they have been increasing in the U.S. since 1987.6 Infant mortality rates, which are widely regarded as a significant measure of population health, have been declining in the U.S. in recent years, but they are declining at a slower rate in the U.S. than in other developed nations, and overall, they remain higher in the U.S. than in other developed nations.7

Equally concerning as the overall rates of maternal and infant mortality are the disparities in the rates based on race, ethnicity, and geography. Data from the Centers for Disease Control and Prevention’s (CDC) Pregnancy Mortality Surveillance System indicate that Black and American Indian/Alaska Native women have significantly more pregnancy-related deaths per 100,000 births than other women giving birth in the U.S., and that these disparities exist across age groups and education levels.8 As an example, pregnancy-related mortality data for the period 2007 to 2017 indicate that pregnancy-related deaths are significantly higher for Black women who have completed college than for White women with a high school diploma.9 Similarly, infants born to Black women are more than twice as likely to die in the first year of life than those born to White, Hispanic, or Asian women.10 Stillbirths (defined as death after 20 weeks of gestation) are significantly higher for Black women as well.11

Causes of pregnancy-related maternal mortality vary, include causes related to underlying health, and may be affected by population health disparities and social determinants of health. Only about 20% of pregnancy-related maternal deaths occur during labor and delivery, while approximately one-third occur during pregnancy and an estimated 52% occur postpartum.12 These statistics suggest that efforts to improve hospital perinatal care, such as through the Joint Commission’s updated perinatal standards introduced in 2021,13 cannot alone solve the problems. For each pregnancy-related death (defined as a death from a pregnancy-related cause occurring during or within one year following pregnancy),14 an average of three to four contributing factors were identified by Emily E. Petersen et al. in analyzing CDC data.15 These factors include:

  1. Community factors, such as securing transportation for medical visits and safe housing.
  2. Health facility factors, such as preparedness to provide the required level of specialty care.
  3. Patient/family factors, such as exposure to economic, psychosocial, and environmental stressors, including the absence of adequate support systems to cope with them.
  4. Provider factors, such as lack of cultural competency and/or the existence of biases that affect patient-provider interactions, treatment decisions, and patient trust and adherence to recommendations.
  5. Health care delivery system factors, such as gaps in health care coverage and preventive or follow-up care.

A November 2020 report by the Kaiser Family Foundation (the KFF Report) echoes many expert opinions that several of the disparities in maternal and infant morbidity and mortality reflect higher barriers to care for people of color.16 As articulated in the KFF Report, health plan coverage and access to care before, during, and after pregnancy supports healthy pregnancies and positive maternal and infant outcomes after childbirth, but people of color are more likely to be uninsured and face other barriers to care.17 The KFF Report notes that Medicaid helps fill coverage gaps during pregnancy and for children, but women of color are still at increased risk of being uninsured prior to their pregnancy and of losing coverage at the end of the 60-day Medicaid postpartum coverage period.18 Finally, the KFF Report notes that people of color may lack access to culturally appropriate care, particularly in rural and medically underserved areas where closures of hospitals and obstetric units have exacerbated provider shortages and left gaps in locally accessible and culturally competent care. Other studies and reports have made similar observations.19

Overview of the Legislative and Regulatory Response to the COVID-19 Public Health Emergency

Both coincident with and because of the COVID PHE, awareness and concern about health disparities in the United States and the factors contributing to them have grown. The heightened awareness has raised alarm about the unaddressed failures and disparities in outcomes for new mothers and babies, and it has pushed maternal and child health to the top of the priority list for policy action.20 Simultaneously, the COVID PHE has altered the regulatory landscape and discourse for many care delivery questions, resulting in a new range of options for care setting, mode of delivery, provider type, and compensation. The result is that, although the COVID PHE has in many ways worsened challenges and outcome disparities for mothers and babies in high-risk populations, the accompanying regulatory and market changes may ultimately lead to new solutions and successes in the quest to address maternal and child morbidity and mortality.

COVID-19 and Pregnancy—A Crisis with a Silver Lining

The CDC reported in early 2020 that pregnancy may increase the risk of severe illness from COVID-19. Following thereafter were reports that pregnant women were significantly more likely than non-pregnant women to be hospitalized, admitted to the intensive care unit, and require mechanical ventilation.21 Out of concern for the elevated risks associated with pregnancy, the governor of New York convened a task force to review the effects of COVID-19 on pregnancy and recommend measures to provide expectant mothers with the care they needed to stay healthy.22 The COVID-19 Maternity Task Force’s recommendations included, among others, (i) increasing birthing site options by accepting and expediting applications from community health centers, Federally Qualified Health Centers, and other sites to provide additional labor and delivery space; (ii) allowing support persons for pregnant women, such as doulas, to accompany pregnant women through labor and delivery; and (iii) regular testing of pregnant women for COVID-19, which would require attention to mechanisms for providers to furnish and be paid for the visits in which testing occurs.23 The recommendations paved the way for increased access, support, and attention to the care of pregnant women and their developing fetuses for the duration of the COVID PHE and perhaps beyond.

In a related development, the American College of Obstetrics and Gynecology (ACOG) and the Society for Maternal-Fetal Medicine (SMFM) responded to COVID-19 pregnancy concerns by publishing an outpatient assessment tool to help providers in better evaluating and managing pregnant women and planning for their safe labor and delivery.24 The tool included prompts to assess and mitigate clinical and social risks, including co-morbidities such as hypertension, diabetes, asthma, HIV, and chronic heart disease.25 Continuing use of this tool has the potential to help identify and provide opportunities to mitigate a variety of the community, health facility, and patient/family factors discussed earlier in this article.

ACOG also became a leading advocate for provisions of the American Rescue Plan (Pub. L. No. 117-2), which allows states to extend the minimum period of continuous guaranteed postpartum coverage under Medicaid and the Children’s Health Insurance Program (CHIP)26 from 60 days to 12 months. This change will provide an additional pathway beyond Section 1135 waivers (which will end when the COVID PHE ends)27 for states to ensure access to postpartum care for the approximately 42% of births that are covered by Medicaid and CHIP.

Expansion of Telemedicine and Telehealth

The national response to the CDC’s recommendation of social distancing included revising and relaxing restrictions for the use and billing of telemedicine, telehealth,28 and nonphysician providers such as advanced practice nurses and midwives. Effective March 6, 2020, the Centers for Medicare & Medicaid Services (CMS) utilized Section 1135 of the Social Security Act29 to waive certain reimbursement restrictions for telemedicine and telehealth.30 These restrictions previously limited reimbursement to services rendered to patients at facilities in rural areas, generally by providers licensed in the same state. The waivers allowed payment for services to new and established patients in their homes, across state lines, and regardless of whether the location was rural or not rural. In addition, patient cost-sharing was waived for telemedicine and/or telehealth visits for patients in Medicare, Medicaid, and CHIP, and certain privacy restrictions under the Health Insurance Portability and Accountability Act that otherwise limited modes of delivery were waived, thereby allowing services to be delivered in common and easily accessible formats such as Zoom, Skype, and Facebook Messenger video.31 Finally, federal payment for telemedicine and telehealth services was modified to create parity with in-person services.

Many states followed the federal government’s lead and waived restrictions that otherwise would limit the mode, provider, site, and payment of telemedicine and telehealth visits that were permitted under state law.32 Many of those waivers have expired or been rescinded,33 but based on positive experience under the waivers, certain allowances, such as the permissibility of care across state lines and to patients in their homes, have been made permanent in certain jurisdictions.

One result of the proliferation of telemedicine and telehealth during the pandemic was increased numbers of pregnant patients being offered telemedicine and related alternatives to traditional physician office visits for pre- and postnatal care.34 In addition to regulatory flexibilities, the federal government, through the Health Resources and Services Administration (HRSA), provided $20 million to increase telemedicine and telehealth capability, capacity, and access for providers, pregnant women, children, and families.35 Grant recipients included the American Academy of Pediatrics (AAP),36 the Association of Maternal and Child Health Programs (AMCHP), and other organizations focusing on maternal and child health. AMCHP issued a Request for Proposals37 to award grant funds based on factors such as the potential to improve a family’s experience receiving services from a maternal and child health program.

Prompted by pandemic-related concerns over capacity and staffing issues, some hospitals and health systems have transitioned to using telehealth and nonphysician care providers and payment systems to provide personalized provider-patient communication, home support, and continuous at-home monitoring of blood pressure, blood glucose levels, and other risk measures for expectant and new mothers. Several recent studies and data analyses have found that use of telehealth during the COVID PHE has aided in closing care gaps, suggesting the potential for increased use of telehealth to improve care access and maternal health equity over the longer term.38

Efforts to Expand the Health Care Workforce with Attention to Culturally Competent Care

With the disproportionate impact of the COVID PHE on Black mothers, and the existing elevated risks of morbidity and mortality for Black mothers, national organizations such as the American Hospital Association (AHA), American Medical Association (AMA), and American Nurses Association (ANA) have steadily urged the Department of Health and Human Services (HHS) to identify and address disparities in responses to the COVID PHE, including taking actions to ensure access to timely, culturally appropriate, and culturally sensitive public health information and resources for pregnant women. Since late 2020, the AHA has led support for provisions within the Black Maternal Momnibus Act (the Momnibus Act)39 and various similar state and federal legislative efforts that may extend the period of guaranteed postpartum coverage to 12 months. Large portions of the Momnibus Act were included in the Build Back Better Act in late 2021, including a provision requiring all states to extend guaranteed postpartum Medicaid coverage to 12 months which, according to estimates, will increase access to care for approximately 720,000 mothers annually.40 The Build Back Better Act also included Momnibus Act provisions for:

  1. Expanding and diversifying the perinatal health care workforce, including funding higher education and training programs for nurses, midwives, doulas, mental health workers, and other types of providers for which there are shortages.
  2. Improving care quality and cultural competencies through technology, digital tools, and anti-bias training for those involved in perinatal care.
  3. Expanding data and research regarding maternal health inequities through federal surveys, state maternal mortality review committees, the National Institutes of Health (NIH), and funding to U.S. academic institutions.

The Momnibus Act provisions are significant, given evidence that suggests that failure to address cultural differences and nurture trust in the health care system has contributed to diagnostic errors, missed screenings, unexpected negative responses to medication, health care associated infections, inappropriate care transitions, and inadequate patient adherence to provider recommendations and follow-up visits.41 In addition to generating harms directly, shortcomings in provider cultural competence may have other negative effects on patient outcomes by affecting patient engagement.42 A more diverse health care workforce that is supported by training and initiatives to improve culturally competent care may help improve the patient experience, foster increased trust and patient engagement, and lead to improved quality and outcomes in all aspects of health care, including pre- and postnatal care.

Attention to Issues and Lifelines in Rural and Underserved Communities

On June 12, 2019, prior to the COVID PHE, CMS joined with other partners to host A Conversation on Maternal Health Care in Rural Communities: Charting a Path to Improved Access, Quality, and Outcomes.43 Panelists identified various opportunities to improve maternal health services and advance health equity in rural communities. In follow-up, CMS released an issue brief, Improving Access to Maternal Health Care in Rural Communities.44 The issue brief identified four main areas of concern for maternal and child health in vulnerable rural communities:

  1. Hospital closures: Since 2010, more than 100 rural hospitals had closed, and now that figure is much higher. In addition, between 2004 and 2014, 179 rural counties lost or closed their hospital obstetric services. The issue brief notes that these conditions affect access to care before, during, and after pregnancy and disproportionately affect low-income women, who are more likely to be women of color and women of certain ethnic backgrounds.
  2. Access to care: The health and wellness of a woman before pregnancy affects outcomes for her and her child, and pre- and postnatal care can reduce the risk of pregnancy complications for both mother and child. The issue brief notes that before and after pregnancy, women must establish or reestablish their well-woman care, and that shortages of appropriate providers, transportation, and insurance coverage in certain communities affect access to all of the necessary types of care.
  3. Insurance coverage: The issue brief highlights that Medicaid is the nation’s single largest payer of perinatal care (>40% of deliveries) and plays an especially important role in rural populations. However, many women covered by Medicaid have been at risk of losing their coverage 60 days postpartum, which increases the likelihood they will receive inadequate or no health care services and, consequently, their risk of morbidity and mortality from preventable causes will be higher.
  4. Provider workforce supply and distribution: Maternal health care is delivered by an array of providers, including physicians specializing in obstetrics and gynecology (OB/GYN), primary care providers, nurses, community health workers, and doulas. The U.S. has a shortage of these types of providers, and the shortage is more severe in rural areas where many counties do not have a practicing OB/GYN physician or a sufficient number of family practice physicians or midwives to adequately cover birthing and pregnancy needs.45

Each of the four factors identified in the issue brief is also believed to be a factor in the disproportionate impact the COVID PHE has had on rural and other vulnerable communities. With the nation’s and world’s eyes focused on the impact of and response to the COVID PHE, addressing these areas of concern became a focus in the COVID-19 fight, resulting in a variety of legislative and regulatory actions, including several examples below.

  1. Expansion of care options through Section 1135 waiver flexibilities
    As noted above, regulatory enforcement waivers pursuant to Section 1135 of the Social Security Act expanded the options for telemedicine and telehealth services, including the types and payment of health care professionals and allowable sites for these services. The waivers also allowed for audio-only interactions for certain services, allowing audio-only telephone evaluation and management services and behavioral health counseling services. As also noted above, CMS waived telemedicine requirements for hospitals, making it easier for smaller and distressed hospitals in rural and struggling communities to offer services via telemedicine, thereby facilitating increased access to necessary specialty care for hospital patients in communities with shortages.
  2. Funding increases under the Families First Coronavirus Response Act46
    Section 6008 of the Families First Coronavirus Response Act (FFCRA) provided a temporary increase in states’ federal Medicaid Assistance Percentage (FMAP) for the duration of the COVID PHE. In addition, Section 6009 of the FFCRA provided an increase to Medicaid allotments for 2020 and 2021 to ensure that states receiving an FMAP increase under Section 6008 can adequately fund their Medicaid programs. Coupled with the similar Medicaid funding increase under the American Rescue Plan (described below), this FMAP change has increased options for states to expand pre- and postpartum Medicaid coverage for new mothers.
  3. The Coronavirus Aid, Relief, and Economic Security Act47
    The Coronavirus Aid, Relief, and Economic Security (CARES) Act established a Public Health and Social Services Emergency Fund (PHSSEF), which initially contained $100 billion of Provider Relief Funds (PRFs) (later increased by an additional $75 billion). A carve-out of $10 billion was set aside specifically for rural providers, and then $1 billion was allocated for rural hospitals that were excluded from the first round of PRFs. The CARES Act also created the Paycheck Protection Program (PPP), with forgivable loans to maintain workforce. The CARES Act initially allocated $349 billion to the PPP with an additional $310 billion added through the Health Care Enhacement Act48, which allowed small, publicly owned rural health care facilities to qualify for PPP funding. The American Rescue Plan Act of 202149 expanded eligibility to rural providers that are affiliated with a larger hospital system, providing an additional lifeline for hospitals serving vulnerable communities.
  4. Funding for Public Health and Rural Workforce Programs
    Section 3216 of the CARES Act allows the Secretary of HHS to reassign members of the National Health Service Corps (NHSC) to places of greatest need during the COVID PHE, and to thereby expand the health care workforce in certain underserved communities that otherwise would lack adequate provider services.50 This provision allows HRSA, which oversees the NHSC, to better serve the areas of most critical need in HRSA’s focus areas, which include pregnant women, mothers, and their families.51
           Section 3401 of the CARES Act created additional and extended support for clinician training and faculty development in areas affecting public health, and Section 3404 extended nurse workforce training programs. Together with Section 3831 of the CARES Act, which extended funding for Community Health Centers and Teaching Health Center Graduate Medical Education (THCGME) programs, these measures may prevent or help remedy historical care gaps that contribute to the provider factors and health care delivery system factors described earlier in this article.
           Separate from the CARES Act authorizations and appropriations, the U.S. has been moving toward recognizing and including public health educators and coaches in primary care teams for Medicaid and CHIP patients, including through the credentialing and payment of health educator and coaching services.
         Effective January 2020, the AMA introduced three Category III52 current procedural terminology (CPT) codes to bill for “health and well-being coaching” by Certified Health Education Specialists (CHES) and Master Certified Health Education Specialists (MCHES).53 These codes allow for billing of the services of individuals certified by the National Board for Health & Wellness Coaching or the National Commission for Health Education Credentialing. The ability to bill and receive payment for such services is significant for two reasons: (i) health education specialists have been shown to serve an important role in preventing and managing lifestyle factors and chronic diseases that can contribute to poorer maternal and child outcomes,54 and (ii) up to 40% of CHES and MCHES are from diverse, non-White racial and ethnic backgrounds and may increase diversity and breadth of cultural competency in the perinatal workforce. As integral members of a care team, these specialists may provide a bridge to a more culturally appropriate approach to education and prevention for diverse individuals.55
         The inclusion of CHES and MCHES as billable members of a care team predates the COVID PHE and has origins in 2014, when CMS revised the definition of preventive services at 42 C.F.R. § 440.130(c) to allow Medicaid and CHIP programs to reimburse for preventive services that are “recommended by” a physician or other licensed health care professional rather than “provided by” a physician or other licensed health care professional. This change allowed for payment of services by individuals who do not have state clinical licensure, so long as their services are recommended by an appropriately licensed physician or other state licensed health care provider. Since 2014, individual states have made progress toward incorporation of preventive services by nonphysician CHES and MCHES into care plans by enacting rules and registration procedures to recognize the education, training, and credentialing of preventive health workers such as CHES and MCHES. However, the process has been accelerated by heightened attention to the community, family, and health care delivery factors affecting public health and outcomes since the start of the COVID PHE. Since 2020, lobbying has increased to make the temporary Category III CPT codes permanent Category I CPT codes to better ensure efficient payment for the related services.
  5. COVID-19 Accelerated and Advanced Payment (AAP) Program
    The The COVID AAP Program that was created by the CARES Act allowed hospitals to request up to a six-month advance of Medicare reimbursements as a lump sum or in periodic payments. Already struggling Critical Access Hospitals were able to secure up to 125% of their expected reimbursement. These allowances, along with extended repayment times, provided a cash influx that may prevent closure and loss of care sites and critical providers in some communities. Like the funding programs for public health and the rural workforce, the COVID-19 AAP Program may have helped mitigate the health care delivery system factors that contribute to maternal and child health disparities in underserved communities by ensuring continued community access points and providers for preventive and follow-up care.
  6. Paid Family and Medical Leave/Parental Leave
    Section 3101 of the FFCRA mandated paid sick and family leave for workers experiencing COVID-19 or family care obligations related to COVID-19. Although the paid leave requirement had a limited duration and was specific to needs stemming from COVID-19, it may be significant to maternal health efforts in that it ignited legislative discourse about the benefits of paid leave for advancing public health objectives and the United States’ lack of paid family, medical, and parental leave—a stark contrast to other economically developed nations.
           The U.S. is the only member of the OECD that does not have national paid family leave, and one of only two members that do not have national paid medical leave.56 Several states have paid family and/or medical leave requirements for employers,57 but the majority of Americans are not covered by these state mandates and do not have paid family or medical leave.58 Even those who have such benefits often cannot afford to take leave from work due to lack of savings or limited re-employment opportunities.59 Data suggest that Black, Hispanic, and Native American individuals are least likely to be able to afford and to take family and medical leave due to underlying disparities in income and job opportunities,60 and that they may therefore be at higher risk for long-term negative outcomes from having to work through serious illness, pregnancy complications, and/or the immediate postpartum period.
           The COVID PHE and related discussions ignited by the FFCRA put questions about paid leave and its benefits into the limelight. This attention has helped advance proposals for a national paid parental/family leave program, most recently through the Build Back Better Act.61 The potential benefits of national paid family and medical leave are now part of our national discourse, including making headlines as an item for policy action in President Biden’s 2022 State of the Union Address.62

Conclusion

There is significant overlap in the factors that have exacerbated health disparities during the COVID PHE and the factors that are likely contributors to relatively poor and disparate rates of morbidity and mortality for pregnant women, new mothers, and babies. Current focus on measures to address these factors may help address historical and continuing challenges with maternal and child health and outcomes. The COVID PHE has shone a spotlight on social determinants of health and areas of critical need in health care delivery, such as addressing gaps in access to care and ensuring an adequate and culturally competent workforce that is supported by appropriate payment and quality infrastructure. It seems unlikely that all of the regulatory changes made during the COVID PHE will be fully reversed, or that expanded services such as telemedicine and telehealth will be completely abandoned when the COVID PHE ends. In this sense, the COVID PHE may ultimately have a silver lining in the form of new and enduring attention to and options for addressing the social, community, health facility, and infrastructure factors that have historically contributed to this country’s higher than expected rates of maternal and infant morbidity and mortality.


Author Profile

Andrea M. Ferrari is a regulatory health care attorney and legal consultant focusing on solutions for public and population health and provider staffing. Contact her via email at [email protected].

The author thanks the following individuals for their contributions to and review of this article: Priya Bathija, JD, American Hospital Association; Montrece Ransom, JD, MPH, National Network of Public Health Institutes; Sarah E. Swank, JD, Nixon Peabody LLP; Delphine O’Rourke, JD, Women’s Health & Wellness Industry/Healthcare Practice, Goodwin LLP; and Nadia de la Houssaye, Chair, Healthcare Industry Team, Jones Walker LLP.


1 The Commonwealth Fund, Maternal Mortality and Maternity Care in the United States Compared to 10 Other Developed Countries (Nov. 18, 2020), https://www.commonwealthfund.org/publications/issue-briefs/2020/nov/maternal-mortality-maternity-care-us-compared-10-countries.

2 Welcome to OECD.Stat, Org. for Econ. Co-operation & Dev., https://stats.oecd.org/index.aspx (last visited Apr. 24, 2022).

3 Pregnancy Mortality Surveillance System, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/reproductivehealth/maternal-mortality/pregnancy-mortality-surveillance-system.htm (last reviewed Nov. 25, 2020).

4 Infographic: Racial/Ethnic Disparities in Pregnancy-Related Deaths – United States, 2007-2016, CDC, https://www.cdc.gov/reproductivehealth/maternal-mortality/disparities-pregnancy-related-deaths/infographic.html (last reviewed Feb. 4, 2020).

5 Infant Mortality, CDC, https://www.cdc.gov/reproductivehealth/maternalinfanthealth/infantmortality.htm (last reviewed Sept. 8, 2021).

6 Pregnancy Mortality Surveillance System, CDC, https://www.cdc.gov/reproductivehealth/maternal-mortality/pregnancy-mortality-surveillance-system.htm (last reviewed Nov. 25, 2020).

7 Welcome to OECD.Stat, OECD, https://stats.oecd.org/index.aspx (last visited Apr. 24, 2022).

8 Pregnancy Mortality Surveillance System, CDC, https://www.cdc.gov/reproductivehealth/maternal-mortality/pregnancy-mortality-surveillance-system.htm (last reviewed Nov. 25, 2020).

9 Id.

10 Infant Mortality, CDC, https://www.cdc.gov/reproductivehealth/maternalinfanthealth/infantmortality.htm (last reviewed Sept. 8, 2021).

11 Shannon M. Pruitt et al., Racial and Ethnic Disparities in Fetal Deaths- United States, 2015–2017, 69 Morbidity & Mortality Wkly. Rep. 1277 (Sept. 18, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6937a1-H.pdf.

12 Eugene Declercq & Laurie Zephyrin, Maternal Mortality in the United States: A Primer, Commonwealth Fund (Dec. 16, 2020), https://www.commonwealthfund.org/publications/issue-brief-report/2020/dec/maternal-mortality-united-states-primer.

13 These new standards are in the Joint Commission’s Accreditation Standards, in the Provision of Care, Treatment, and Services (PC) Chapter: PC.06.01.01 (to reduce the likelihood of harm related to maternal hemorrhage); and PC.06.03.01 (to reduce the likelihood of harm related to maternal severe hypertension/preeclampsia), https://www.jointcommission.org/-/media/tjc/documents/standards/r3-reports/r3-issue-24-maternal-12-7-2021.pdfrg).

14 The published data regarding maternal mortality frequently distinguish between pregnancy-associated mortality, which is generally death while pregnant or within one year of the end of pregnancy (regardless of cause) and pregnancy-related mortality, which is generally death during pregnancy or within one year of pregnancy from a pregnancy complication, a chain of events initiated by pregnancy, or the aggravation of an unrelated condition by physiologic events of pregnancy. Pregnancy-related mortality is typically reported as a ratio per 100,000 live births and is used by the CDC and other authorities to track trends. Separate from pregnancy-associated mortality and pregnancy-related mortality is a third measure, the maternal mortality ratio, which measures death while pregnant or within 42 days of the end of pregnancy from causes related to or aggravated by pregnancy and its management.

15 Emily E. Petersen et al., Vital Signs: Pregnancy-Related Deaths, United States, 2011-2015, and Strategies for Prevention, 13 States, 2013–2017, 68 Morbidity & Mortality Wkly. Rep. 423 (May 10, 2019), https://www.cdc.gov/mmwr/volumes/68/wr/pdfs/mm6818e1-H.pdf013–2017 (cdc.gov).

16 Samantha Artiga et al., Racial Disparities in Maternal and Infant Health: An Overview, Kaiser Family Found. (Nov. 10, 2020), https://www.kff.org/report-section/racial-disparities-in-maternal-and-infant-health-an-overview-issue-brief/KFF.

17 Id.

18 Id. Prior to 2021, pregnant Medicaid beneficiaries and those covered by the Children’s Health Insurance Program (CHIP) were entitled to at least 60 days of continuing Medicaid eligibility postpartum, regardless of changes in income that would otherwise result in loss of eligibility (42 C.F.R. § 435.170 (2022)). Under the American Rescue Plan Act of 2021 (Pub. Law No. 117-2, 135 Stat. 4 (2021)), states have the option of extending guaranteed continuous postpartum Medicaid eligibility to 12 months, regardless of changes in income or any other circumstance such as loss of eligibility for Supplemental Security Income (SSI). Medicaid and CHIP cover approximately 42% of U.S. pregnancies (Birth Data, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/nchs/nvss/births.htm (last reviewed Mar. 29, 2022)).

19 See, e.g., Eugene Declercq & Laurie Zephyrin, Maternal Mortality in the United States: A Primer, Commonwealth Fund (Dec. 16, 2020), https://www.commonwealthfund.org/publications/issue-brief-report/2020/dec/maternal-mortality-united-states-primer; see also Andre Chappel et al., Healthy Women, Healthy Pregnancies, Healthy Futures: Action Plan to Improve Maternal Health in America, Dep’t Health & Hum. Servs., https://aspe.hhs.gov/sites/default/files/private/aspe-files/264076/healthy-women-healthy-pregnancies-healthy-future-action-plan_0.pdf.

20 See, e.g., Andre Chappel et al., Healthy Women, Healthy Pregnancies, Healthy Futures: Action Plan to Improve Maternal Health in America, Dep’t Health & Hum. Servs., https://aspe.hhs.gov/sites/default/files/private/aspe-files/264076/healthy-women-healthy-pregnancies-healthy-future-action-plan_0.pdf; and Press Release, White House, Biden-Harris Administration Announces Initial Actions to Address the Black Maternal Health Crisis (Apr. 13, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/13/fact-sheet-biden-harris-administration-announces-initial-actions-to-address-the-black-maternal-health-crisis/.

21 Apoorva Mandavilli, Study Raises Concerns for Pregnant Women With the Coronavirus, N.Y. Times, June 24, 2020, https://www.nytimes.com/2020/06/24/health/coronavirus-pregnancy.html.com.

22 Recommendations to the Governor to Promote Increased Choice and Access to Safe Maternity Care During the COVID 19 Pandemic, N.Y. State COVID-19 Maternity Task Force (Apr. 2020), https://www.governor.ny.gov/sites/default/files/atoms/files/042920_CMTF_Recommendations.pdf.

23 Id.

24 See Outpatient Assessment and Management for Pregnant Women With Suspected or Confirmed Novel Corona virus (COVID-19), Am. Coll. Obstetricians & Gynecologists (2020), https://www.acog.org/-/media/project/acog/acogorg/files/pdfs/clinical-guidance/practice-advisory/covid-19-algorithm.pdf.

25 Id.

26 All 50 states provide Medicaid coverage for pregnancy in the case of individuals who meet income thresholds or qualify for Supplemental Security Income (SSI). Six states (CO, MO, NJ, RI, VA and WV) provide pregnancy and postpartum coverage to low-income individuals under the CHIP program.

27 This is a reference to temporary waivers or modifications to Medicare, Medicaid, CHIP and other HHS requirements that are authorized under Section 1135 of the Social Security Act (42 U.S.C. § 1320b-5 (2021)) and for the duration of the period that the President declares a disaster or state of emergency under the Stafford Act (42 U.S.C. §§ 5121–5208) or National Emergencies Act (50 U.S.C. §§ 1601, 1621, 1622). Current waivers in effect prevent the termination of Medicaid coverage until the end of the COVID-19 Public Health Emergency.

28 As defined by the American Association of Family Practice (AAFP), telemedicine is the practice of medicine using technology to deliver care at a distance- for example, a physician in one location using a telecommunications infrastructure to deliver care to a patient at a distant site. AAFP defines the term “telehealth” more broadly as use of electronic and telecommunications technologies to provide care services-- including nonphysician services—at-a-distance. This article adopts the AAFP definitions. What’s the difference between telemedicine and telehealth?, Am. Acad. Fam. Physicians, https://www.aafp.org/news/media-center/kits/telemedicine-and-telehealth.html (last visited Apr. 24, 2022).

29 42 U.S.C. § 1320b-5. As noted above, Section 1135 of the Social Security Act authorizes the Secretary of the Department of Health and Human Services to issue temporary waivers or modifications to Medicare, Medicaid, CHIP and other HHS requirements in response to a Presidential declaration of a disaster or state of emergency under the Stafford Act (42 U.S.C. §§ 5121–5208) or National Emergencies Act (50 U.S.C. §§ 1601, 1621, 1622). Section 1135 waivers are for a period of 60 days from the date that the waiver or modification is published, unless the Secretary extends them for an additional 60 days, and in any case end when the period of emergency ends.

30 Press Release, U.S. Ctrs. for Medicare & Medicaid Servs., Medicare Telemedicine Health Care Provider Fact Sheet (Mar. 17, 2020), https://www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet.

31 Notification of Enforcement Discretion for Telehealth Remote Communications During the COVID-19 Nationwide Public Health Emergency, Off. for Civ. Rts., https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html (last reviewed Jan. 20, 2021).

32 See, e.g., Fla. Dep’t Health, Emergency Order 20-003, In Re: SUSPENSION OF STATUTES, RULES AND ORDERS, MADE NECESSARY BY COVID-19, Mar. 21, 2020, https://www.flgov.com/wp-content/uploads/covid19/DOH%20EO%2020-003%203.21.2020.pdf; and Commonwealth of Mass., Order Expanding Access to Telehealth Services and to Protect Health Care Providers, Mar. 15, 2020, https://www.mass.gov/doc/march-15-2020-telehealth-order/download.

33 For a survey of state emergency actions and related expirations and recissions, see, e.g., Fed’n State Med. Bds., U.S. States and Territories Modifying Requirements for Telehealth in Response to COVID-19, https://www.fsmb.org/siteassets/advocacy/pdf/states-waiving-licensure-requirements-for-telehealth-in-response-to-covid-19.pdf (last updated Feb. 22, 2022).

34 Ian Hill & Emily Burroughs, Maternal Telehealth Has Expanded Dramatically During the COVID-19 Pandemic: Equity Concerns and Promising Approaches, Robert Wood Johnson Found. & Urban Inst. (2020), https://www.urban.org/sites/default/files/publication/103126/maternal-telehealth-has-expanded-dramatically-during-the-covid-19-pandemic_5.pdf.

35 HRSA, Fed. Off. Rural Health Pol’y, HRSA-21-107, Telehealth Technology-Enabled Learning Program (2021), https://www.hrsa.gov/grants/find-funding/hrsa-21-107.

36 Press Release, Am. Acad. Pediatrics, AAP awarded $6 million to improve access to care via telehealth models in response to the COVID-19 pandemic (Apr. 30, 2020).

37 Request for Proposals (RFP): CARES Act: Maternal and Child Health Telehealth Capacity in Public Health Systems Direct Awards, Ass’n Maternal & Child Health Programs (2020), https://amchptelehealth.org/wp-content/uploads/2020/08/Request-for-Proposals.pdf.

38 See, e.g., Joy Madubuonwu & Pooja Mehta, How Telehealth Can be Used to Improve Maternal and Child Health Outcomes: A Population Approach, 64 Clinical Obstetrics & Gynecology 398 (2021); and Kamilah Dixon-Shambley & Patricia Gabbe, Using Telehealth Approaches to Address Social Determinants of Health and Improve Pregnancy and Postpartum Outcomes, 64 Clinical Obstetrics & Gynecology 333 (2021).

39 The Black Maternal Momnibus Act refers to a legislative package introduced by Representative Lauren Underwood in March 2020. Its purpose is to address the maternal health crisis with focus on Black mothers, who statistics show are disproportionately affected. The first bill from the package was enacted as the Protecting Moms Who Served Act, which allocated $15 million to mothers who are veterans. Other provisions of the package were part of the Build Back Better Act, which was President Biden’s climate and social spending bill.

40 Sarah Gordon et al., Medicaid After Pregnancy: State-Level Implications of Extending Postpartum Coverage, Assistant Sec’y for Plan. & Evaluation, Dec. 7, 2021, https://aspe.hhs.gov/reports/potential-state-level-effects-extending-postpartum-coverage.

41 Cultural Competence and Patient Safety, Agency for Healthcare Rsch. & Quality, Dec. 27, 2019, https://psnet.ahrq.gov/perspective/cultural-competence-and-patient-safety.

42 Id.

43 A Conversation on Maternal Healthcare in Rural Communities: Charting a Path to Improved Access, Quality, and Outcomes, Ctrs. for Medicare & Medicaid Servs. (2019), https://www.cms.gov/files/document/rural-maternal-health-forum-summary.pdf.

44 Improving Access to Maternal Health Care in Rural Communities, Ctrs. for Medicare & Medicaid Servs., https://www.cms.gov/About-CMS/Agency-Information/OMH/equity-initiatives/rural-health/09032019-Maternal-Health-Care-in-Rural-Communities.pdf.

45 The term “safety net hospital” is a reference to hospitals that have a mission and/or legal obligation to provide health care services to patients regardless of ability to pay. Such hospitals often have comparatively large proportions of patients who are covered by lower-reimbursing coverage plans such as CHIP, Medicaid, or charity programs, or they do not have any source of payment for their care.

46 Families First Coronavirus Response Act, Pub. L. No. 116-127, 134 Stat. 178 (Mar. 18, 2020).

47 Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116–136, 134 Stat. 281 (Mar. 27, 2020).

48 Paycheck Protection Program & Health Care Enhancement Act, Pub. L. No. 116-139, 134 Stat. 620 Apr. 24, 2020)

49 American Rescue Plan Act of 2021, Pub. L. No. 117-2, 135 Stat. 4 (Mar. 11, 2021).

50 Families First Coronavirus Response Act § 3216 provides: “During the public health emergency declared . . . on January 31, 2020 . . . the Secretary may . . . assign members of the National Health Service Corps . . . to provide [] health services [in] places and for [times] the Secretary determines necessary to respond to [the] emergency . . .”

51 HRSA and the NHSC and Nurse Corps (NC) provide health care to individuals who are geographically isolated and economically or medically vulnerable, including people living with HIV/AIDS, pregnant women, mothers, and their families and those who are otherwise unable to access high quality care, including in rural areas.

52 Current procedural terminology (CPT) codes are a set of uniform numerical codes used to identify specific medical, surgical, and diagnostic health care services. CPT Codes are generally the basis for and prerequisite to billing services to Medicare, Medicaid, commercial insurance, and other types of health care coverage programs. There are three categories of CPT Codes: Category I, which includes procedures, services, devices, and vaccines; Category II, which includes measures of performance and quality of care; and Category III, which are temporary codes that designate services that are provisional and/or use emerging technology and/or for which data are still being collected to establish efficacy. Payments for services designated by a Category III code may be more limited or require more documentation prior to approval of the payment by a health plan.

53 These CPT Codes are:

• 0591T health and well-being coaching face-to-face; individual, initial assessment

• 0592T individual, follow-up session, at least 30 minutes

• 0593T group (two or more individuals), at least 30 minutes

55 Health Educator Demographics And Statistics In The U.S., Zippia, https://www.zippia.com/health-educator-jobs/demographics/ (updated Dec. 14, 2021).

56 PF2.1. Parental leave systems, in OECD Family Database (2021), https://www.oecd.org/els/soc/PF2_1_Parental_leave_systems.pdf.

57 Paid Leave in the U.S., Kaiser Fam. Found., https://www.kff.org/womens-health-policy/fact-sheet/paid-leave-in-u-s/amp/ (last visited Apr. 24, 2022).

58 Id.

59 Julia Goodman & William Dow, Paid Family Leave as a Strategy for Reducing Health Inequities, Pub. Health Post, Mar. 2, 2022, https://www.publichealthpost.org/research/paid-family-leave/.

60 Id.

61 H.R. 5376, 117th Cong. (2021).

62 Joseph Biden, President, White House, State of the Union Address (Mar. 1, 2022), https://www.whitehouse.gov/state-of-the-union-2022/.

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