Reed Smith Client Alerts

The following topics will be covered in this alert:

  • Blanket waivers issued by CMS under section 1135
  • Seeking case-by-case section 1135 waivers
  • HIPAA waivers issued by HHS
  • Relaxation of reimbursement requirements for telehealth services

Authors: Carol Colborn Loepere Scot T. Hasselman Nicole J. Aiken-Shaban Arielle R. Lusardi Kristin B. Parker Rebecca E. Dittrich

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Introduction

On March 13, 2020, the Centers for Medicare & Medicaid Services (CMS) took quick action to issue blanket waivers under section 1135 of the Social Security Act (SSA) following President Trump’s declaration of a national emergency related to COVID-19, the disease caused by novel coronavirus (2019-nCoV). As CMS Administrator Seema Verma recognized, “[i]t is vital that federal requirements designed for periods of relative calm do not hinder measures needed in an emergency.”1

As discussed in our previous client alert, when the secretary of Health and Human Services (HHS) declares a public health emergency (PHE), the secretary is authorized to waive or modify certain Medicare, Medicaid, Children’s Health Insurance Program (CHIP), and Health Insurance Portability and Accountability Act (HIPAA) requirements to ensure that sufficient health care items and services are available to meet the needs of individuals enrolled in federal health care programs and to provide flexibility to and reduce administrative burdens for providers of such items and services (1135 Waivers). CMS did just that, announcing 11 categories of blanket waivers covering a variety of providers, including skilled nursing facilities; excluded and distinct part acute care hospital units; suppliers of durable medical equipment prosthetics, orthotics, and supplies (DMEPOS); long-term acute care hospitals; home health agencies; and administrative burdens, such as provider enrollment and Medicare appeals. These waivers are similar to other waivers HHS has issued for other PHEs, such as hurricanes and other natural disasters.

We discuss below each of these blanket waivers, as well as the process for 1135 Waivers on a case-by-case basis for modifications requested outside the announced blanket waivers; HHS’s related waiver of certain sanctions and penalties against a covered hospital under HIPAA; and CMS’s waiver of certain telehealth reimbursement requirements. We note that these waivers do not apply to conditions of payment, which cannot be waived.