Federal 1135 Waivers Available due to COVID-19
March 16, 2020
On Friday, President Trump declared a national emergency, beginning March 1, in response to the COVID-19 pandemic. The declaration allows greater regulatory flexibility to assist states with the containment of the virus, including directing the Secretary of the Dept. of Health and Human Services (HHS) to “exercise the authority under section 1135 of the SSA (Social Security Act) to temporarily waive or modify certain requirements of the Medicare, Medicaid, and State Children’s Health Insurance programs and of the Health Insurance Portability and Accountability Act Privacy Rule throughout the duration of the public health emergency declared in response to the COVID 19 outbreak.
On March 13 and March 15, HHS issued several blanket waivers as described below. Hospitals do not need to request an individual waiver to be relieved from compliance with laws referenced below to the extent described in each blanket waiver.The blanket waivers that have been issued thus far include, but are not limited to:
- Skilled Nursing Facilities (SNF): CMS waived the -day prior hospitalization requirement for coverage of SNF stay, and authorized renewed SNF coverage without requiring the start of a new benefit period;
- Critical Access Hospitals (CAH): CMS waived CAH requirements regarding limiting the number of beds to 25 and the length of stay to 96 hours;
- Provider Locations: CMS temporarily waived requirements that out-of-state providers be licensed in the state where they are providing services when they are licensed in another state. This applies to Medicare and Medicaid;
- Care for Excluded Inpatient Psychiatric Unit Patients in the Acute Care Unit of a Hospital: CMS waived requirements to allow acute care hospitals with excluded distinct part inpatient psychiatric units that, as a result of a disaster or emergency, need to relocate inpatients from the excluded distinct part psychiatric unit to an acute care bed and unit. Hospitals should continue to bill for such care under the inpatient psychiatric facility PPS and document in the medical record that the patient is being cared for in an acute care bed due to circumstances related to the disaster or emergency;
- Care for Excluded Inpatient Rehabilitation Unit Patients in the Acute Care Unit of a Hospital: CMS waived requirements to allow acute care hospitals with excluded distinct part inpatient rehabilitation units that, as a result of a disaster or emergency, need to relocate inpatients from the excluded distinct part rehabilitation unit to an acute care bed and unit. Hospitals should continue to bill for such care under the inpatient rehabilitation facility PPS and document in the medical record that the patient is being cared for in an acute care bed due to circumstances related to the disaster or emergency;
- Provider Enrollment: CMS established a toll-free hotline for non-certified Part B suppliers, physicians and non-physician practitioners to enroll and receive temporary Medicare billing privileges and waived certain screening requirements;
- Certain conditions of participation, certification requirements, program participation or similar requirements for individual health care providers, including as applicable, a hospital;
- Sanctions under section 1867 of the Act (the Emergency Medical Treatment and Labor Act, or EMTALA) for the direction or relocation of an individual to another location to receive medical screening pursuant to an appropriate state emergency preparedness plan or for the transfer of an individual who has not been stabilized if the transfer is necessitated by the circumstances of the declared Federal public health emergency for the COVID-19 pandemic;
- Sanctions under section 1877(g) (relating to limitations on physician referral) under such conditions and in such circumstances as CMS determines appropriate; and
- Limitations on payments under section 1851(i) of the Act for healthcare items and services furnished to individuals enrolled in a Medicare Advantage plan by healthcare professionals or facilities not included in the plan’s network.