CMS Rapidly Approves Section 1135 Waivers in Response to the COVID-19 Pandemic

This content was last updated as of Monday, May 18 at 12:00 a.m. CST

The Centers for Medicare & Medicaid Services (CMS) continues its issuance of Section 1135 waivers, waiving or modifying certain Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) requirements to ensure that states and other healthcare providers have adequate healthcare items and services to meet the demands of the novel coronavirus (COVID-19) pandemic. Additional background information on these waivers and recent CMS efforts related to the COVID-19 pandemic can be found here. The Section 1135 waiver approval documents from CMS may be accessed on the Medicaid website.

Beginning with Florida on March 16, 2020, and Washington State three days later, CMS approved Section 1135 waivers for 54 states and territories,  adding the following approvals in record time, within days of requests, between March 23 and April 22, 2020:

Generally, these waivers offer states relief and flexibility in the following areas:

Temporary Suspension of Medicaid Fee-For-Service Prior Authorization Requirements

CMS will allow states to waive specific state plan requirements to obtain prior authorization for benefits administered through the fee-for-service delivery system.

The CNMI, District of Columbia, the U.S. Virgin Islands, and the following states received waivers in this category: Alaska, Arizona, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming.

Extension of Pre-Existing Authorizations for Beneficiaries Who Have Previously Received Prior Authorization

Under this waiver, beneficiaries receiving prior authorization for services on or after March 1, 2020, may continue to receive such services through the end of the public health emergency without a new or renewed prior authorization.

The CNMI, District of Columbia, the U.S. Virgin Islands, and the following states received waivers in this category: Alaska, Arizona, Colorado, Connecticut, Delaware, Georgia, Idaho, Illinois, Indiana, Kansas, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Oregon, Pennsylvania, Rhode Island, South Carolina, Texas, Vermont, Virginia, West Virginia, and Wisconsin.

Suspension of Pre-Admission Screening and Annual Resident Review (PASRR) Level I and II Assessments for 30 days

For states receiving this waiver, CMS will allow the state to suspend the PASRR timing requirements for Level I and Level II Assessments. Medicaid-certified nursing facilities will be allowed to delay the performance of Level I and Level II assessments of individuals with mental illness or intellectual disabilities for 30 days after admission. The exemption for hospital discharges (found at 42 C.F.R. §483.106) will be extended to all new admissions to these facilities. Once this 30-day period expires, a resident review, as required by 42 C.F.R. §483.114, must be performed for individuals with mental illness or intellectual disabilities as soon as resources become available.

The District of Columbia and the following states received waivers in this category: Alabama, Alaska, Arizona, Arkansas, Colorado, Delaware, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, West Virginia, Wisconsin, and Wyoming.

Modification of State Fair Hearing Requests and Appeal Timelines

States may do some or all of the following:

1. Allow enrollees additional time for requesting a fair hearing for eligibility and fee-for-service issues.
2. Modify the timeframe for managed care entities to resolve an appeal before an enrollee may request a state fair hearing to no less than one day, ensuring that enrollees can more quickly transition to the state fair hearing process.
3. Expand the timeframe for enrollees to request a fair hearing when their deadline occurs during the period of the Section 1135 waiver.

The U.S. Virgin Islands, Puerto Rico, and the following states received waivers in this category: Alaska, Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Utah, Vermont, Virginia, West Virginia, and Wyoming.

The waiver modifying the timeframe for managed care entities to resolve appeals does not apply to Colorado and Puerto Rico. The waivers for Alaska, CNMI, Georgia, Maine, Montana, Nebraska, South Carolina, Texas, Wyoming, and the U.S. Virgin Islands only allow enrollees to obtain additional time for requesting fair hearings related to eligibility and fee-for-service appeals.

Relaxation of Provider Enrollment Requirements

CMS will allow states to temporarily enroll out-of-state providers who are enrolled with another State Medicaid Agency or Medicare in their Medicaid programs for the duration of the public health emergency. CMS will also permit states to enroll providers not currently enrolled with another State Medicaid Agency or Medicare temporarily and waive some or all of the requirements listed below if other minimum requirements are satisfied:

1. In-state licensure.
2. Payment of an application fee.
3. Fingerprint-based criminal background checks.
4. Site visits.

Out-of-state providers not enrolled in a state’s Medicaid program must continue to follow CMS guidelines for reimbursement, but CMS will waive the requirement that claims submitted be related to care provided to a single participant or a single instance of care. Some states may also temporarily cease revalidation of providers located in the state.

Where applicable, the same provider enrollment waiver will be extended to the state’s CHIP.

The CNMI, District of Columbia, Puerto Rico, the U.S. Virgin Islands, and the following states received waivers in this category: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, West Virginia, Wisconsin, and Wyoming.

Expansion of the Ability to Provide Services in Alternative Settings

This waiver permits facilities – including nursing facilities, intermediate care facilities for individuals with intellectual and developmental disabilities, psychiatric residential treatment facilities, and hospital nursing facilities – to be reimbursed for services rendered to an unlicensed facility, where an emergency evacuation or relocation is required while the placing facility continues to provide services. In these instances, the state must ensure the unlicensed facility meets minimum health and safety standards. The placing facility will determine the reimbursement rate to the unlicensed facility.

The CNMI, District of Columbia, and the following states received waivers in this category: Alaska, California, Colorado, Connecticut, Georgia, Hawaii, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Vermont, West Virginia, Wisconsin, and Wyoming.

Ohio also received a waiver to allow certain home and community-based services to be provided in settings that have not been determined to meet CMS criteria for home and community-based settings.

Facilitation of State Plan Amendment Flexibilities Through Modifications to Submission Deadline, Public Notice, and Tribal Consultation Requirements

Arkansas, Colorado, Connecticut, Hawaii, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, Ohio, Oregon, South Carolina, Texas, West Virginia, Wisconsin, and the District of Columbia received a Section 1135 waiver that allows each state to bypass public notice requirements for state plan amendments. For state plan amendments that increase access to items and services related to COVID-19, the state will not need to follow usual public notice and comment procedures, but CMS has encouraged these states to continue making relevant information available to the public in some manner.

Arkansas, Colorado, Connecticut, Hawaii, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Ohio, South Carolina,  West Virginia, Wisconsin, and the District of Columbia received a waiver modifying the March 31, 2020 state plan amendment submission deadline for COVID-19-related amendments but allowing the state to retain a first quarter 2020 effective date.

Alaska, Colorado, Connecticut, Hawaii, Maine, Maryland, Massachusetts, Michigan, Nebraska, Nevada, North Dakota, Oregon, South Carolina, Utah,  West Virginia, and Wisconsin also received Section 1135 waivers to modify the timeframe for tribal consultations associated with state plan amendments, if the state plan amendment increases access to COVID-19-related items and services.

Generally, these Section 1135 waivers are effective March 1, 2020, and will terminate when the public health emergency ceases.

CMS is expected to continue receiving and approving requests for Section 1135 waivers for the duration of this public health emergency. For example, May 5, 2020, marked the start of a second wave of rapid Section 1135 waiver request approvals. This alert does not address waiver requests granted after April 22, 2020, but the full list of states receiving approvals can be found here.

For further guidance on Section 1135 waivers or for assistance submitting a Section 1135 waiver request, please contact the authors of this alert or any attorney in our Healthcare Practice Group. Additional resources on the requirements for submitting a Section 1135 waiver request can be found on the Medicaid website.