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CMS Waivers and Flexibilities 

by Brienne T. Marco

Published: April, 2020

Submission: April, 2020

 



In times of emergency, the Secretary of Health and Human Services (the "Secretary") has authority to issue temporary waivers or modifications of certain Medicare, Medicaid, CHIP, and HIPAA requirements. The Centers for Medicare and Medicaid Services ("CMS") has released a substantial number of waivers in response to the coronavirus national emergency. Highlights of the list include:
  • A waiver of Section 1867(a) of the Social Security Act to allow hospitals, psychiatric hospitals, and critical access hospitals to screen patients at a location offsite from the hospital's campus to prevent the spread of COVID-19, so long as it is not inconsistent with a state's emergency preparedness or pandemic plan.

  • A waiver of the requirements of 42 C.F.R. § 482.22(a)(1)-(4) to allow for physicians whose privileges will expire to continue practicing at the hospital and for new physicians to be able to practice before full medical staff/governing body review and approval to address workforce concerns related to COVID-19.

  • Waivers of sanctions under Section 1877(g) of the Social Security Act, commonly referred to as the Stark law, removing self-referral barriers to responding to COVID-19.

  • Waivers of the provisions related to telemedicine at 42 C.F.R. §482.12(a)(8)-(9) for hospitals, making it easier for telemedicine services to be furnished to the hospital's patients.

  • Waivers and modifications of various administrative requirements relating to verbal orders, medical records, and reporting requirements to allow for flexibility and ensure hospitals can focus on patient care during the current surge.
 
Waivers have been issued that apply to hospitals (including psychiatric hospitals, critical access hospitals, cancer centers, and long-term care hospitals), inpatient psychiatric facilities, skilled nursing facilities, home health agencies, hospice, end-stage renal dialysis centers, durable medical equipment suppliers, and physician practices. For a complete list of waivers, visit the CMS website here.
 
The authority to grant waivers derives from Section 1135 of the Social Security Act, which allows the Secretary to waive or modify certain Medicare, Medicaid, CHIP, and HIPAA requirements. Two prerequisites must be met before the Secretary may invoke this authority. First, the President must have declared an emergency or disaster under either the Stafford Act or the National Emergencies Act. Second, the Secretary must have declared a Public Health Emergency under Section 319 of the Public Health Act. Both of these prerequisites were met as of March 13, 2020.
 
The waivers are intended to ensure that during the emergency, to the maximum extent possible, sufficient health care items and services are available to meet the needs of individuals enrolled in the Medicare, Medicaid, and CHIP programs and health care providers that furnish such items and services in good faith, but that are unable to comply with one or more requirements described in Section 1135(b) of the Social Security Act, may be reimbursed for such items and services and exempted from sanctions for noncompliance absent a determination of fraud and abuse.
 
For more information about the waivers and how they may assist your practice with delivering services during the coronavirus national emergency, please contact a member of Spilman's COVID-19 Task Force or Health Care Practice Group.
 

 



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