By Brian Craig, J.D.
CMS temporarily eases many Medicare and Medicaid requirements during the public health emergency.
In response to the COVID-19 pandemic, CMS has issued certain blanket waivers of sanctions related to Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) program requirements and conditions of participation. The waivers cover a variety of areas, including suspending certain nursing home pre-admission reviews, and facilitating reimbursement to providers for care delivered in alternative settings due to facility evacuations, waiving prior authorization and provider enrollment requirements, and expanding practitioner locations. The waivers are effective March 1, 2020 and will end upon termination of the public health emergency, including any extensions. The waivers do not require a request to be sent to CMS.
Background. On March 13, 2020, President Donald Trump issued an emergency declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the "Stafford Act") to declare a national health emergency. The HHS Secretary is authorized to waive certain Medicare, Medicaid and CHIP program requirements and conditions of participation under Section 1135 of the Social Security Act once the President has declared an emergency through the Stafford Act.
Blanket waivers. As a result of this authority, CMS granted waivers retroactively to March 1, 2020 on multiple fronts. Providers and suppliers do not need to apply for an individual waiver if a blanket waiver is issued by CMS. Examples of these waivers or modifications include:
- Conditions of participation or other certification requirements
- Program participation and similar requirements
- Preapproval requirements
- Emergency Medical Treatment and Labor Act (EMTALA)
- Sanctions under the physician self-referral law (also known as the "Stark Law")
- 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.
Practitioner locations. CMS is temporarily waiving requirements that out-of-state practitioners be licensed in the state where they are providing services when they are licensed in another state. CMS will waive the physician or non-physician practitioner licensing requirements when the following four conditions are met: (1) must be enrolled as such in the Medicare program; (2) must possess a valid license to practice in the state which relates to his or her Medicare enrollment; (3) is furnishing services—whether in person or via telehealth—in a state in which the emergency is occurring in order to contribute to relief efforts in his or her professional capacity; and, (4) is not affirmatively excluded from practice in the state or any other state that is part of the 1135 emergency area.
Federally certified and approved providers must continue to operate under normal rules and regulations, unless they have sought and have been granted modifications under the waiver authority from specific requirements. The state licensing waiver is for purposes of Medicare, Medicaid, and CHIP reimbursement only. The 1135 waiver authority applies only to Federal requirements and does not apply to State requirements for licensure or conditions of participation.
Telehealth services. The HHS Secretary has also waived certain Medicare telehealth requirements. The Coronavirus Preparedness and Response Supplemental Appropriations Act includes a provision allowing the Secretary to waive certain Medicare telehealth payment requirements to allow beneficiaries in all areas of the country to receive telehealth services, including at their home. Under the waiver, limitations on where Medicare patients are eligible for telehealth will be removed during the emergency. In particular, patients outside of rural areas, and patients in their homes will be eligible for telehealth services, effective for services starting March 6, 2020.
Individual waivers. Along with the blanket waivers, providers and suppliers can submit requests for individual 1135 waivers. These requests must include a justification for the waiver and expected duration of the modification requested. The State Survey Agency and CMS Survey Operations Group will review the provider’s request and make appropriate decisions, usually on a case-by-case basis. Providers and suppliers should keep careful records of beneficiaries to whom they provide services, in order to ensure that proper payment may be made. Providers are expected to come into compliance with any waived requirements prior to the end of the emergency period.
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