Health Law Daily CMS establishes web platform for Section 1135 waivers
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Tuesday, January 12, 2021

CMS establishes web platform for Section 1135 waivers

By Jeffrey H. Brochin, J.D.

New web-based system to be used for all Section 1135 waiver requests and/or Public Health Emergency (PHE)-related inquiries submitted on or after January 11, 2021.

The Quality, Safety & Oversight (QSO) Group of CMS has issued a letter to State Survey Agency (SA) Directors informing them of a new web-based tool to assist Medicare and Medicaid-participating providers and suppliers with the submission of Section 1135 Waiver requests and inquiries. With very limited exception, the new web system is to be used for all 1135 waiver requests and/or PHE-related inquiries submitted on or after the January 11, 2021 announcement date (CMS Letter, CMS QSO 21-11-ALL, January 11, 2021).

PHE declarations. When the President declares a disaster or emergency under the Stafford Act or National Emergencies Act and the Secretary of HHS declares a public health emergency (PHE) under Section 319 of the Public Health Service Act, the Secretary is authorized to take certain actions in addition to the Secretary’s regular authorities. Under section 1135 of the Social Security Act, the Secretary 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 Medicare, Medicaid and CHIP in the emergency area for the duration of the emergency, and that participating providers who provide services in good faith can be reimbursed and exempted from sanctions to the extent permitted by the waiver.

Covid-19 challenges. The COVID-19 PHE brought to light several challenges related to the submission, tracking and issuance of Section 1135 Waivers due to the volume of requests for flexibilities by the provider and supplier community. These waivers or modifications included waivers of certain conditions of participation or other certification requirements, flexibilities surrounding licensure of physicians and other health care professionals, Emergency Medical Treatment and Labor Act (EMTALA) requirements, and more.

During prior emergency declarations by the President and Secretary, providers and suppliers seeking waivers of provisions, which are authorized to be waived under Titles XVIII, XIX and/or XXI, would normally submit their request in an informal email to one of 10 CMS Survey and Operations Group (SOG) locations. These requests were then reviewed by the SOG locations and approved or granted on a case-by-case basis.

Waiver submission streamlining. In light of the volume of Section 1135 waiver requests associated with the COVID-19 PHE, CMS has developed a new web-based tool which went live on January 11, 2021, and which is located at the CMS PHE Emergency Web Portal. The new tool is a web-based platform, accessible on either a personal computer or a mobile device using Chrome or Firefox browsers. Designed to reduce burden and streamline the submissions of Section 1135 waiver requests and inquiries in a simple-to-use format, the web-based platform assists in expediting review of submissions, triages requests or inquiries, and tracks and reports on a national scale.

Issuance of blanket waivers. The CMS letter noted that under Section 1135 or 1812(f) of the Social Security Act (regarding extended care services that are not subsequent to a hospital stay), CMS is authorized to issue blanket waivers during a disaster or emergency. Blanket waivers allow CMS to provide flexibilities and modifications nationally or in specific geographic areas. When a blanket waiver is issued, providers or suppliers do not have to apply for an individual waiver. In the absence of a blanket waiver, providers may ask for an individual Section 1135 waiver.

For additional information on current blanket Section 1135 waivers or flexibilities, SA directors were instructed to visit CMS’s COVID Waiver page.

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