On March 13, 2020, President Trump declared a national state of emergency as a result of the coronavirus (COVID-19) outbreak.  Regardless of the intensity of the emergency from COVID-19 in a particular area, the President’s declaration allows the federal government, under Section 1135 of the Social Security Act, to waive many of the day-to-day requirements imposed on health care providers by Medicare, Medicaid and the Children’s Health Insurance Program. Additionally, health care providers now have an opportunity, either collectively or individually, to request waivers of federal laws and regulations to help them combat the spread of the COVID-19 virus.  The President’s declaration clears a significant regulatory hurdle that restricted health care providers from dealing with COVID-19.

In response to the President’s declaration, the U.S. Centers for Medicare & Medicaid (CMS) also announced a list of waivers of various Medicare and Medicaid requirements.  While a full list of the waivers can be found here, some of the more interesting waivers include the following:

Skilled Nursing Facilities (SNF)

• CMS waives the three-day prior hospitalization requirement for Medicare coverage of a skilled nursing facility stay.
• Some beneficiaries who have exhausted their SNF benefit may have their benefit renewed without starting a new benefit period.
• CMS also waives the timeframe requirements for both Minimum Data Set assessments and for transmissions for residents found at 42 C.F.R. §483.20.

State License Requirements and Part B Enrollment

• CMS temporarily waives the Medicare and Medicaid requirements that out-of-state providers be licensed in the state where they are providing services when they are licensed in another state. 
• CMS also temporarily waives certain enrollment requirements for fingerprinting, background checks and facility site visits for Part B suppliers. 
• CMS will also establish a toll-free hotline for non-certified Part B suppliers, physicians and non-physician practitioners to enroll and receive temporary Medicare billing privileges.

Acute Care Hospitals (ACH)

• CMS waives requirements to allow acute care hospitals to house acute care inpatients in excluded distinct part units, where the distinct part unit’s beds are appropriate for acute care inpatient. 
• The ACH should bill for the care and indicate in the medical record that the patient is an acute care inpatient being housed in the excluded unit because of capacity issues related to the disaster or emergency.

Long-Term Care Acute Hospitals (LTCHs) 

• LTCHs may exclude patient stays where an LTCH admits or discharges patients in order to meet the demands of the emergency from the 25-day average length of stay requirement, which allows these facilities to be paid as LTCHs.

Critical Access Hospitals

• CMS waives the 25-bed limit for Critical Access Hospitals.
• CMS also waives the 96-hour length of stay limit.

Durable Medical Equipment Prosthetics, Orthotics and Supplies (DMEPOS) Suppliers

• DMEPOS suppliers may waive the requirements for replacement DMEPOS when it is lost, damaged, destroyed or rendered unusable.  
• This includes waiving the face-to-face requirement, a new physician’s order and a new determination of medical necessity, provided that the DMEPOS supplier submits a narrative of the situation on the claim submission and documents the circumstances of the waiver.

Home Health Agencies (HHAs)

• CMS provides relief to HHAs on the timeframes related to OASIS Transmission. 
• Medicare Administrative Contractors may also extend the auto-cancellation date of Requests for Anticipated Payment (RAPs) during emergencies.

Now is a time for health care providers to assess, creatively, what resources they might need and ask the federal government, particularly CMS, for a waiver of any Medicare, Medicaid or CHIP requirement that would prevent the effective delivery of care.  The Secretary of Health and Human Services has broad authority under Section 1135 of the Social Security Act to waive these requirements, including Medicaid and CHIP requirements on a state-by-state basis.  Simultaneously, health care providers should ask their local officials for relief from any applicable state law in order to combat the spread of COVID-19 in their communities.  Health care providers are encouraged to work with each other, and their representative trade associations, to collaborate and identify the resources needed, and the laws and regulations that should be waived, during the COVID-19 emergency.

Christopher P. Dean and Lisa Keenan are lawyers in Miles & Stockbridge’s Health Care Practice and members of the Coronavirus Task Force, a cross-disciplinary team that can quickly and efficiently deploy talent from relevant practices to address concerns and issues in real time.

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