March 16, 2020
Health Care Alert
Author(s): Harsh P. Parikh, Sarah E. Swank
UPDATE 3/18/2020: This alert has been updated to include new “blanket” waivers issued on telehealth and HIPAA.
The health care industry is finally getting some much-needed flexibility to maneuver through the COVID-19 coronavirus pandemic. Last Friday’s Presidential proclamation of a national emergency opens the door for the United States Department of Health and Human Services (HHS) to offer health care providers relief through waivers under section 1135 of the Social Security Act.
Health care providers around the country are bracing for an influx of new COVID-19 cases and looking for ways to expand their capacity to care for COVID-19 patients. Last week, hospitals started delaying elective surgeries, limiting visitations, enhancing their telehealth capabilities, and expanding their clinical staff to support growing demand.
On Friday, March 13, 2020, President Donald J. Trump issued a Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (National Emergency Proclamation) under the National Emergencies Act (50 U.S.C. § 1601 et seq.). The National Emergency Proclamation opens the door for the United States Health and Human Services (HHS) to offer health care providers relief through waivers under section 1135 of the Social Security Act (Section 1135).
Following the National Emergency Proclamation, HHS’s Centers for Medicare and Medicaid (CMS) issued several nation-wide blanket waivers for health care providers that CMS Administrator Seema Verma described as “a godsend for those on the frontlines of the fight against this new virus.” Waivers of federal rules and regulations can free up health care providers to focus on preparedness and response efforts and enhance operational flexibilities to support an expected surge of COVID-19 patients. In addition to the blanket waivers, health care providers may now submit provider-specific waiver requests that are justified and supportable and within the purview of Section 1135, retroactive to March 1, 2020.
Within hours of the National Emergency Proclamation, CMS issued several blanket waivers, which are immediately available to all health care providers. The following blanket waivers are available for the duration of the national emergency:
These blanket emergency waivers do not require submission of individualized requests by providers. Instead, providers should review their operations to determine how the increased flexibilities facilitated by these waivers can better support their operations and caring for COVID-19 cases in their communities.
The national emergency declaration permits the federal agency to waiver other requirements related to Medicare, Medicaid, and the Children’s Health Insurance Programs (CHIP). These waivers are done on a case-by-case basis. Health care providers must assess their needs and identify any federal laws, the waiver of which would facilitate serving patients in their communities during the COVID-19 pandemic. For example, providers should evaluate whether to seek specific waivers of any of the following federal laws:
Health care providers must submit requests to operate under Section 1135 authority to both their State Survey Agency (and/or the applicable accreditation organization) and their CMS Regional Office. The waiver request should include key information about the enrolled facility and a brief justification for requesting the waiver or modification. Health care providers do not need to submit waiver information to take advantage of the blanket waivers. Waiver requests should be made in consultation with legal counsel.
The following table includes email addresses of CMS Regional Offices to use to submit specific waiver requests.
CMS Regional Office |
States |
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Atlanta Regional Office |
Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee |
|
Dallas Regional Office |
Arkansas, Louisiana, New Mexico, Oklahoma, Texas |
|
Philadelphia Regional Office (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, Vermont |
|
Chicago Regional Office (Midwest Consortium) |
Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin, Iowa, Kansas, Missouri, Nebraska |
|
San Francisco Regional Office (Western Consortium) |
Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming, Alaska, Idaho, Oregon, Washington, Arizona, California, Hawaii, Nevada, Pacific Territories |
Section 1135 waivers will help support health care providers around the country tackle the national emergency. Although Section 1135 waivers can provide key tools to address surges in demand, health care providers must also be mindful of state licensure laws and local requirements. Many state governors have already proclaimed state-wide emergencies, triggering similar flexibilities under state law. Health care providers and suppliers located in areas with the COVID-19 outbreak should also consider certain disaster assistance for capital expenditures.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.