McDermott Will & Emery LLP: CMS Establishes Online Portal for Case-by-Case Section 1135 Provider Waiver Requests

“During the coronavirus (COVID-19) public health emergency, CMS issued a broad variety of Section 1135 waivers on a “blanket” basis applicable to various provider types. CMS also gave providers the ability to request and receive approval for specific relief on a case-by-case basis based on a provider’s specific facts and circumstances. CMS’s instructions to providers regarding how they should request Section 1135 waivers has varied considerably over the course of the pandemic. CMS has now established a standardized form that providers may fill out to request case-by-case Section 1135 waivers and to confirm whether certain waiver types are already in place through prior pronouncements. This information remains relevant to providers, particularly in light of the recent extension of the COVID-19 public health emergency through April 21, 2021.”

Background

“On March 13, 2020, following the declaration of a national emergency under the National Emergencies Act and an emergency determination under the Stafford Act, CMS began issuing waivers of certain Medicare, Medicaid and Children’s Health Insurance Program (CHIP) requirements, as authorized by Section 1135 of the Social Security Act (collectively, Section 1135 waivers), to assist with the response to the COVID-19 pandemic. Since the first blanket waivers were issued, CMS has regularly published updated and revised blanket waivers and guidance under Section 1135. The blanket Section 1135 waivers do not require providers to submit a request to CMS or notify CMS’s Regional Offices and are applicable nationally to a broad group of providers, reflecting the nationwide effects of the COVID-19 crisis.”

“Providers and suppliers that have identified the need for additional waiver relief under Section 1135 based on their specific facts and circumstances in relation to the COVID-19 pandemic may also apply for “case-by-case” waivers over and above those provided in the blanket waivers. However, the guidance for how, exactly, a provider should request specific relief has changed over time (including e-mailing a specific CMS inbox and contacting the provider’s CMS Regional Office) and providers have expressed frustration regarding the submission and review of Section 1135 waivers…”

Key Takeaways

“The inconsistencies of using email correspondence as a mechanism to request additional case-by-case waivers under Section 1135 has been frustrating for hospitals and providers. CMS has now established a more streamlined and standardized portal to simplify the process of requesting a Section 1135 waiver based on an individual provider’s specific facts and circumstances, which may prove helpful as the COVID-19 public health emergency remains in effect.” Read the full article here.

Source: CMS Establishes Online Portal for Case-by-Case Section 1135 Provider Waiver Requests – By Sandra M. DiVarco and Caroline Reigart, January 20, 2021. McDermott Will & Emery LLP.

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