March 16, 2020
With Secretary Azar’s Public Health Emergency declaration and President Trump’s National Emergency declaration, CMS is authorized to grant Social Security Act §1135 waivers of Medicare, Medicaid or SCHIP requirements (“1135 Waivers”) with respect to COVID-19. Such Waivers may be granted as (A) blanket waivers; and/or (B) provider specific waivers.
A. Blanket Waivers
For purposes of COVID-19, CMS has granted the blank waivers described in a March 13, 2020 fact sheet, which include a number of broad waivers including, but not limited to:
These various waivers loosen certain regulatory requirements and apply to skilled nursing facilities, critical access hospitals, acute care hospitals, home health agencies and other providers that may be impacted by the emergency. Unlike provider-specific waivers, once a blanket waiver is issued, providers do not have to apply to CMS for the waiver. Rather, blanket authority is allowed and applies to all applicable providers in the emergency area. However, 1135 Waiver guidance suggests that providers should still notify the State Survey Agency and CMS Regional Office if a provider is operating under these waivers/modifications to ensure proper payments.
B. Provider-Specific Waivers
Separate from any blanket waiver, providers (hospitals, nursing facilities, physicians, etc.) in the emergency area have an opportunity to request additional waivers or modifications of specific requirements as they relate to the provider, which CMS will then grant on a case-by-case basis. The following are the categories of provider-specific waivers that under §1135 CMS can waive or modify reimbursement requirements related to:
Once a provider-specific 1135 Waiver is authorized (as has been done for COVID-19), health care providers can submit requests to operate under that authority or for other relief that may be possible outside the authority to the CMS Regional Office with a copy to the State Survey Agency. Request can be made by sending an email to the CMS Regional Office in their service area. The requests generally include a justification for the waiver and expected duration of the modification requested. Providers and suppliers should keep careful records of beneficiaries to whom they provide services, in order to ensure that proper payment may be made. The State Survey Agency and CMS Regional Office will review the provider’s request and make appropriate decisions, usually on a case-by-case basis. CMS generally approves specific waivers and modifications only to the extent that the provider in question has been affected by the disaster or emergency. Providers are expected to come into compliance with any waived requirements prior to the end of the emergency period.
Note: a 1135 waiver waives Medicare, Medicaid or SCHIP requirements for reimbursement purposes only and does not waive or preempt state licensing requirements.