FAQs: Emergency-Related Medicare Waivers

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Attention Providers! There are important updates to Emergency-Related Medicare Waivers Policy and Procedures. On August 26, 2017, pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act, President Trump declared that, as a result of the effects of Hurricane Harvey, a major disaster exists in the State of Texas, retroactive to August 25, 2017. Also on August 26, 2017, Secretary Price of the Department of Health and Human Services declared that a public health emergency exists in the State of Texas and authorized waivers and modifications under Section 1135 of the Social Security Act (the Act), retroactive to August 25, 2017.

Under Section 1135 or 1812(f) of the Social Security Act, the Centers for Medicare & Medicaid Services (CMS) has issued several blanket waivers in the impacted counties and geographical areas of Texas. These waivers will prevent gaps in coverage for beneficiaries impacted by the emergency. Providers do not need to apply for an individual waiver if a blanket waiver has been issued.

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Frequently Asked Questions (FAQs) Medicare Waivers

Question: What are “waivers” under § 1135 of the Social Security Act; how are they established; and how do they apply to Medicare fee-for-service?

Answer: Section 1135 of the Social Security Act authorizes the Secretary of the Department of Health and Human Services to waive or modify certain Medicare, Medicaid, CHIP, and HIPAA requirements. Two prerequisites must be met before the Secretary may invoke the § 1135 waiver 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 (PHE) under Section 319 of the Public Health Service Act. Then, with respect to the geographic area(s) and time periods provided for in those declarations, the Secretary may elect to authorize waivers/modifications of one or more of the requirements described in Section 1135(b) and summarized below. The implementation of such waivers or modifications is typically delegated to the Administrator of CMS who, in turn, determines whether and the extent to which sufficient grounds exist for waiving such requirements with respect to a particular provider, or to a group or class of providers, or to a geographic area.

Medicare Waivers authorized by the statute apply to Medicare in the context of the following requirements:

• Conditions of participation or other certification requirements applicable to providers
• Licensure requirements applicable to physicians and other health professionals
• Sanctions for violations of certain emergency medical standards under the Emergency Medical Treatment and  Labor Act (EMTALA)
• Sanctions relating to physician self-referral limitations (Stark)
• Performance deadlines and timetables (modifiable only; not waivable)
• Certain payment limitations under the Medicare Advantage program.

Medicare fee-for-service requirements, including most particularly (but not limited to) Medicare payment rules and amounts, are not, and cannot be, waived under § 1135. Nevertheless, some of the foregoing waivers, when invoked, may have the effect of making fee-for-service payments possible when absent a waiver, such payments would not have been permissible.

Question: Does the § 1135 authority allow CMS to waive Medicare requirements that apply to individuals affected by the emergency/disaster? If so, would there be a set period of time for the emergency to exist, or would such waiver vary by affected individual?

Answer: Section § 1135 waivers – when authorized – apply to requirements that apply to health care providers. Such waivers do not directly apply to individual beneficiaries. However, the waivers that are granted for health care providers are intended to reduce administrative burdens on those providers and to increase flexibilities in the delivery of healthcare with the intent of promoting greater access to care by individuals affected by the emergency or disaster.

Question: Will CMS provide disaster relief funding to hospitals following an emergency or disaster to make up for the lost reimbursement? If so what documentation will be required inpatient clinical and financial records?

Answer: There is currently no standing authority for CMS to provide special emergency/disaster relief funding following an emergency or disaster in order to compensate providers for lost reimbursement. Congress had appropriated disaster specific special funding for the Hurricane Katrina disaster; but absent such special appropriation, Medicare does not provide funding for financial losses except as otherwise specified in existing regulations.

Question: At what point will individuals no longer be treated as “emergency victims?” Is there a set period of time or does it vary by individual?

Answer: Emergency policies, including those policies made possible by the § 1135 waiver authority, generally do not apply to individual beneficiaries. These policies apply to the geographic area(s) in which the emergencies have been declared and may apply to individual health care providers or groups or types of providers. As described more fully in these emergency Q&As, the effect of waivers and of other flexibilities are intended to facilitate access to care by program beneficiaries. Generally speaking, Medicare fee-for-service emergency policies are in effect in the geographic areas, and for the length of time, specified by the President’s declaration of an emergency or disaster.

Question: How does a health care provider affected by an emergency request and receive approval for a 1135 waiver?

Answer: Section 1135 waivers are generally not authorized in response to an individual provider’s request. Rather, such waivers are typically authorized for geographic areas for the duration of a declared emergency or disaster. To determine whether waiver authority has been invoked for a particular emergency or disaster and, if so, whether any such waiver would apply to your facility, contact your State Survey Agency (SA) or the Medicare contractor to which you submit claims. In some circumstances, providers may be required to submit documentation of the need for a grant of the waiver of certain requirements. In the event, the SA or your servicing Medicare contractor will advise you of specific requirements. All providers impacted by an emergency or disaster should activate their disaster plans, especially those providers furnishing emergency treatment subject to the Emergency Medical Treatment and Labor Act (EMTALA).

And all providers should assume that normal Medicare fee-for-service rules remain in effect unless official notice is made that waivers of such rules have been granted.

Q&As address policies and procedures that are applicable without any Section 1135 or other formal waivers. These policies are always applicable in any kind of emergency or disaster, including the current emergency in Texas.
Q&As applicable without any Section 1135 or other formal waiver are available at https://www.cms.gov/About-CMS/AgencyInformation/Emergency/Downloads/Consolidated_Medicare_FFS_Emergency_QsAs.pdf

Q&As address policies and procedures that are applicable only with approved Section 1135 waivers or, when applicable, approved Section 1812(f) waivers. These Q&As are applicable for approved Section 1135 blanket waivers and approved individual 1135 waivers requested by providers and are effective August 25, 2017, for Texas.
Q&As applicable only with a Section 1135 waiver or, when applicable, a Section 1812(f) waiver, are available at: https://www.cms.gov/About-CMS/AgencyInformation/Emergency/Downloads/MedicareFFS-EmergencyQsAs1135Waiver.pdf

Requests for Individual Waivers:
Providers can request an individual Section 1135 waiver, if there is no blanket waiver, by following the instructions available at https://www.cms.gov/About-CMS/AgencyInformation/Emergency/Downloads/Requesting-an-1135-Waiver-Updated-11-16-2016.pdf

Requests for Additional Blanket Waivers
Additional blanket waiver requests are being reviewed. The most current waiver information can be found under Administrative Actions at: https://www.cms.gov/About-CMS/AgencyInformation/Emergency/Hurricanes.html

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