New CMS Waivers

April 3, 2020

On March 30, 2020, the Centers for Medicare & Medicaid Services (“CMS”) announced several new blanket waivers and flexibilities issued under Section 1135 of the Social Security Act in response to the COVID-19 emergency (“Section 1135 Waivers”). In order to ensure maximum flexibility to deal with an influx of COVID-19 cases, the Section 1135 Waivers apply to most provider types and generally include:

• Telehealth services for Medicare beneficiaries from the safety of their home, including via telephone.

• The ability to rapidly expand the health care workforce in various ways such as having self-quarantined clinicians use telehealth to provide care, allowing providers licensed in one state to provide care in another state, or allowing clinicians who are not fully employed due to the emergency to provide care in another area.

• Testing Patients Where They Are, including drive-up testing centers and patients’ homes.

• Using Community Health Care Resources, allowing hospitals to transfer patients to different types of units and facilities that would not ordinarily be covered by Medicare.

• COVID-only Care Centers can be set up by hospitals and dialysis centers to help reduce COVID-19 transmission to others.

• Expanding Hospital Capacity by allowing hotels, convention centers and surgery centers to be converted for hospital care.

• Bolstering the “Patients Over Paperwork” initiative through the extension of quality reporting deadlines and suspending medical necessity documentation.

CMS published a 26-page Summary of the COVID-19 Emergency Declarations Waivers which is categorized by provider type. Under each provider type, CMS further categorizes waived or suspended requirements by topic (e.g., EMTALA, verbal orders, patient rights, medical staff, medical records, Advance Directives, etc.), and provides a description of the waiver along with the applicable regulatory citation for which a requirement has been waived or suspended. In addition, CMS put together 15 separate fact sheets for the different provider types with additional details. CMS waiver and flexibility fact sheets for each provider type are on the CMS Coronavirus Waivers & Flexibilities webpage.