Legal Alert

CMS Issues Temporary Regulatory Waivers to Increase the U.S. Health Care System’s Ability to Respond to COVID-19

by the Health Care Group
April 1, 2020

On March 30, 2020, the Centers for Medicare & Medicaid Services (CMS) issued a large number of temporary regulatory “blanket” waivers to provide “maximum flexibility” for the U.S. health care system’s response to COVID-19. This issuance was enabled by President Trump’s emergency declaration of March 13, 2020, which authorized CMS to issue Section 1135 waivers and expand efforts to combat COVID-19.  CMS may issue waivers or modifications pursuant to Section 1135 of the Social Security Act on a “blanket” basis where it makes a determination that all similarly situated providers in an emergency area require such a waiver. Once issued, providers and suppliers do not need to apply for individual waivers, as these blanket waivers apply automatically. Providers and suppliers may still request individual waivers of requirements not covered by the blanket waivers.

Highlights of the blanket waivers include: waiver of sanctions under the Physician Self-Referral (Stark) Law, increased flexibility for ambulatory surgery centers to provide hospital services, waiver of enforcement of certain Emergency Medical Treatment & Labor Act provisions to permit off-site screening of hospital patients, increased flexibility for verbal orders to improve efficiency in hospital patient treatment, waiver of the three-day prior hospitalization rule for coverage of a skilled nursing facility stay, waiver of home health agency initial assessment requirements to permit Medicare-covered initial assessments to be conducted remotely or by record review, and waiver of hospice requirements to provide certain non-core hospice services.

The CMS blanket waivers are broad and affect hospitals, psychiatric hospitals, critical access hospitals, inpatient psychiatric facilities, long-term care facilities, skilled nursing facilities, home health agencies, hospice facilities, end-stage renal dialysis facilities, DMEPOS suppliers, and physicians, among other stakeholders. CMS has issued a detailed summary of the blanket waivers which may be found here.

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