National emergency declared over COVID-19 coronavirus; 1135 waivers now in play

By Brian Ward 

Hospitals and other healthcare organizations will soon have some regulatory relief and more resources following President Trump’s March 13 declaration of a national emergency due to the spread of the coronavirus that causes COVID-19. 

During his press conference, the President said that the Department of Health and Human Services will temporarily waive or modify regulations around healthcare to give "maximum flexibility to respond to the virus and care for patients.” This will free up over $40 billion from FEMA’s disaster relief fund.  Regulatory changes include allowing providers work in states where they might not have licenses, along with loosening the rules around telehealth consultations and areas where facilities are allowed to care for patients.  

The declaration also means that a healthcare facility reasonably believes a certain Condition of Participation (CoP) will harm or hinder their response, they can request  CMS for a reprieve using a 1135 waiver.  
"A presidential emergency or disaster declaration [allows for Section 1135 waivers of certain government health program] requirements so that hospitals, physicians, and other health care providers may share resources in a coordinated effort to care for their community," the American Hospital Association, American Medical Association and American Nurses Association said in a joint letter Thursday.  After the declaration was made on Friday, they issued another release commending the decision, stating that it would allow for waivers of: 

  • "The skilled nursing facility three-day qualifying hospital stay requirement for beneficiaries, which would allow SNF coverage in the absence of a hospital stay, making inpatient beds available for more seriously ill patients. 
  • Critical access hospitals' limitation of 25 inpatient beds and the 96-hour length of stay limitation. This is crucial for rural areas that may not have other options for inpatient beds.
  • Requirements that physicians and other health care professionals be licensed in a state in which they are providing services, so long as they have equivalent licensing in another state for Medicare, Medicaid and Children’s Health Insurance participants."

With an 1135 waiver, a facility can modify: 

  • CoP or other certification requirements 
  • Program participation and similar requirements 
  • Preapproval requirements 
  • State licensing requirements for physicians and other healthcare professionals 
  • Emergency Medical Treatment and Active Labor Act (EMTALA) sanctions 
  • Stark self-referral sanctions 
  • Performance deadlines and timetable adjustments (these may not be waived) 
  • Limitations on payment to permit Medicare enrollees to use out-of-network providers in an emergency 
  • In addition, the emergency declaration also frees up $50 billion in emergency funds for the states.  

While there’s no standardized application template for an 1135 waiver, there is specific information that hospitals will need to include in their request: 

  • Provider name and type 
  • Full address: county, city, town, state 
  • Medicare provider number 
  • Name and contact information of the provider’s point of contact 
  • Consideration, such as the type of relief requested or regulatory requirement/reference to be waived 
  • Brief summary of why the 1135 waiver is needed 

This story will be updated as the situation develops. Visit CMS to for more info:  https://www.cms.gov/About-CMS/Agency-Information/Emergency/EPRO/Current-Emergencies/Current-Emergencies-page 

Brian Ward is editor of Patient Safety Monitor Journal and editor/administrator of the Accreditation & Quality Compliance Center.