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The "blanket waiver" system now in effect eases a wide range of requirements, but CMS still won't reimburse for telehealth by PTs.

The "blanket waiver" system now in effect eases a wide range of requirements, but CMS still won't reimburse for telehealth by PTs.

President Donald Trump's declaration of a national emergency in response to the coronavirus pandemic has resulted in enactment by the Centers for Medicare and Medicaid Services of special waiver provisions that affect a broad range of activities and settings in Medicare, Medicaid, and the Children's Health Insurance Program, or CHIP. The so-called "1135 waivers" — a reference to section 1135 of the Social Security Act — are being offered temporarily to clinicians and facilities.

CMS has issued a special edition of MLN Matters covering the 1135 waivers. Here are some important elements of the process you need to understand.

These are "blanket waivers" that automatically authorize providers to take advantage of the changes — but CMS wants you to notify your survey agency and CMS regional office before you do.
The waivers are available immediately and cover everything from general payment policies to admission requirements for facilities. CMS offers a fact sheet on the waivers available; if you believe a specific waiver would be helpful, contact your state survey agency as well as your CMS Regional Office.

  • (Atlanta RO): Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee
  • (Dallas RO): Arkansas, Louisiana, New Mexico, Oklahoma, and Texas
  • (Northeast Consortium): Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, West Virginia, New York, New Jersey, Puerto Rico, Virgin Islands, Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont
  • (Midwest Consortium): Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin, Iowa, Kansas, Missouri, and Nebraska
  • (Western Consortium): Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming, Alaska, Idaho, Oregon, Washington, Arizona, California, Hawaii, Nevada, and the Pacific Territories

CMS also offers instructions on how to make a waiver request.

The waivers don't affect state laws or regulations, or change the services reimbursed—or not reimbursed—by CMS. That means PTs still can't be reimbursed for telehealth.
Services that weren't covered before the 1135 system was put in place still aren't covered. Even though recently passed legislation eased some Medicare telehealth restrictions, the changes didn't expand the list of health care professionals who can furnish telehealth—and PTs aren't on that list. Medicare Advantage plans have some flexibility when it comes to telehealth, but it’s up to the plan to just how flexible they want to be.

HIPAA is still in effect.
The HIPAA Privacy Rule, the HIPAA Security Rule, and the confidentiality provisions of the Patient Safety Rule aren't eased, but during the national emergency, HHS may waive sanctions against a covered hospital that does not comply with certain HIPAA provisions. In other words, when it comes to HIPAA, nothing has changed. The HHS Office for Civil Rights has produced a bulletin on the waivers as they related to HIPAA; additionally, OCR offers a webpage on how HIPAA rules apply in an emergency, and a "HIPAA Disclosures for Emergency Preparedness Decision Tool."

The 1135 provisions include a "waiver of provider licensure," but it doesn't mean much unless a state creates a waiver, too.
The 1135 system wasn't created solely for pandemics — it's also used to respond to regional disasters, where out-of-state providers may be needed to respond to an emergency. That's where the licensure waiver has the most effect. While the provisions do include a waiver that allows authorized providers to render services outside their states of Medicare enrollment, in order for the provider license waiver to be of much practical use, states would need to create their own licensure waivers — otherwise, the state requirements win out.

Provider enrollment requirements have been eased.
CMS has issued a blanket waiver of certain Medicare enrollment requirements, including application fees, fingerprint-based criminal background checks, and site visits. CMS has also postponed all revalidation actions. Additionally, CMS will establish a toll-free hotline PTs and other providers can use to enroll and receive temporary Medicare billing privileges, and the agency will expedite any new or pending enrollment applications.

Facility surveys are being prioritized — but not eliminated.
The waiver process doesn't end surveys, but CMS has prioritized the kinds of surveys that will be done, in coordination with state and local health departments, accrediting bodies, and the CDC. Effective immediately, survey activity is limited to the following (in priority order):

  • All immediate jeopardy complaints (cases that represent a situation in which entity noncompliance has placed the health and safety of recipients in its care at risk) and allegations of abuse and neglect
  • Complaints alleging infection control concerns, including facilities with potential COVID-19 or other respiratory illnesses
  • Statutorily required recertification surveys (nursing home, home health, hospice, and intermediate care facilities) for individuals with intellectual disabilities
  • Any re-visits necessary to resolve current enforcement actions
  • Initial certifications
  • Surveys of hospitals and other facilities that have a history of infection control deficiencies at the immediate jeopardy level in the last three years
  • Surveys of hospitals, dialysis centers, and other facilities that have a history of infection control deficiencies at lower levels than immediate jeopardy

Available waivers also include eased requirements for critical-access hospitals, long-term care hospitals, and inpatient rehabilitation facilities, but those facilities still need to notify the state survey agency and CMS Regional Office.
Bed limits, length-of-stay requirements, the IRF "60 percent rule" governing discharges, and other provisions can be eased under the waiver system, but just like individual clinicians, facilities must notify CMS of the waivers it will be implementing.

It's up to individual states to request waivers related to Medicaid and CHIP.
Unlike waivers available in Medicare, there is no specific form or format required to submit the request for a Section 1135 waiver under Medicaid, but states are being advised to clearly state the scope and impact of the issue. States and territories may submit a Section 1135 waiver request directly to the CMS Acting Director, Medicaid & CHIP Operations Group Center for Medicaid & CHIP Services. The types of relief that state Medicaid agencies can seek are outlined in the CMS fact sheet.

There are additional resources worth checking out.
In addition to a fact sheet on the blanket waivers, CMS offers a detailed set of common questions and answers related to the 1135 system, and a "waiver at a glance" document that takes a more big-picture approach.

Visit APTA's Coronavirus webpage for information and updates.

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