Section 1135 Waiver Issues and COVID-19

III. Florida 1135 Waivers:

On March 13, 2020, Florida became the first state to file a request for a 1135 waiver to address the challenges posed by COVID-19. On March 16, 2020, CMS filed a response to Florida’s 1135 waiver requests.^[8] CMS granted a number of waiver requests to help Florida combat this emerging crisis.

* Florida Provider Enrollment Changes:

In general, a state Medicaid agency must enroll furnishing providers. However, Florida is not required to create a temporary provisional enrollment for providers who are enrolled with another state Medicaid agency or Medicare. Under current CMS policy, Florida may reimburse otherwise payable claims from an out-of-state provider not currently enrolled in Florida’s Medicaid program if five criteria have been met.

• The item or service is furnished by an institutional provider, individual practitioner, or pharmacy at an out-of-state/territory practice location– i.e., located outside the geographical boundaries of the reimbursing state/territory’s Medicaid plan,
• The National Provider Identifier (NPI) of the furnishing provider is represented on the claim,
• The furnishing provider is enrolled and in an “approved” status in Medicare or in another state/territory’s Medicaid plan,
• The claim represents services furnished, and;
• The claim represents either: A single instance of care furnished over a 180-day period, OR Multiple instances of care furnished to a single participant, over a 180-day period^[9]

For the duration of the Section 1135 waiver, CMS has agreed to waive the fifth criteria listed above. Therefore, providers may furnish care to more than one beneficiary and may treat multiple instances of care over a 180-day period as long as the other four criteria have been met.

Florida has also been granted the ability to perform an expedited enrollment for an out-of-state facility for a certified provider who is enrolled in Medicare or with another state Medicaid program in order to accommodate participants who were displaced by the emergency.

For providers not currently enrolled with Medicare or a state Medicaid agency, CMS has agreed to waive four screening requirements to allow Florida to provisionally, temporarily enroll providers. Specifically, the following screening requirements may be waived:

1. Payment of the application fee - 42 C.F.R. 455.460.
2. Criminal background checks associated with Fingerprint-based Criminal Background Checks - 42 C.F.R. 455.434.
3. Site visits - 42 C.F.R. 455.432.
4. In-state/territory licensure requirements - 42 C.F.R. 455.412.

However, CMS is still requiring Florida to meet a number of minimum documentation requirements before enrolling providers to ensure the safety of patients. Finally, Florida may temporarily cease revalidation of providers who are located in Florida or who are directly impacted by the emergency. These provider enrollment emergency relief efforts also apply to CHIP.

 

* Waiver of Service Prior Authorization (PA) Requirements:

CMS has agreed to waive any prior authorization processes outlined in the State of Florida’s state plan. This waiver applies to services provided on or after March 1, 2020 through the termination of the emergency declaration for beneficiaries with a permanent residence in the geographic area of the public health emergency.

* Waiver for Pre-Admission Screening and Annual Resident Review (PASRR) Level I, Level II Assessments for 30 Days:

For Medicaid-certified nursing facilities, Level 1 and Level 2 assessments have been waived for 30 days. All new admissions can be treated like exempted hospital discharges. After 30 days, any new admissions with mental illness or intellectual disability should receive a Resident Review as soon as resources become available.

* Waiver to Allow Evacuating Facilities to Provide Services in Alternative Settings, such as a Temporary Shelter When a Provider’s Facility is Inaccessible:

Facilities such as nursing facilities, intermediate care facilities for individuals with intellectual and developmental disabilities, psychiatric residential treatment facilities, and hospitals nursing facilities are to be fully reimbursed for services rendered during an emergency evacuation to an unlicensed facility (where an evacuating facility continues to render services). After the initial 30 days, CMS would require that the unlicensed facility either seek licensure or the evacuating facility would need to seek new placement for the individuals.

* State Fair Hearing Requests and Appeal Deadlines:

CMS has granted Florida the authority to modify the timeframes associated with appeals and fair hearings. Specifically, CMS granted three modifications to the state fair hearing and decision-making process:

1. CMS has authorized the state to modify the timeframe for managed care plans to resolve appeals to zero days. If the state uses this authority, it would mean that all appeals filed between March 1, 2020 and June 29, 2020 are deemed to immediately satisfy the exhaustion requirement in 42 CFR 438.408(f)(1) and allow enrollees to proceed directly to the state fair hearing.
2. Managed care enrollees have 120 days to exercise their appeal rights and file for a fair hearing under 42 CFR 438.408(f)(2). Any managed care enrollee for whom the 120 day deadline would have occurred between March 1, 2020 through June 29, 2020 is granted an extension to request a state fair hearing. An enrollee can be allowed up to an additional 120 days to make this request, however, all requests must be made no later than June 29, 2020.
3. Modification of the timeframes in 42 CFR 431.221(d) to allow beneficiaries to have more than 90 days to request a state fair hearing for eligibility or fee-for-service issues.

CMS also granted a number of flexibilities the state can utilize in operating their appeals and fair hearing process:

• The state may suspend adverse actions for individuals for whom the state has completed a determination but either: 1) has not yet sent the notice; or 2) who the state believes likely did not receive the notice.
• The state may delay scheduling fair hearings and issuing fair hearing decisions.
• The state may offer to continue benefits to individuals who are requesting a fair hearing if the request comes later than the date of the action.